Nuther Item On the Jail from Judge Biscoe

One more housekeeping item regarding officials' desire to expand the Travis County Jail. See Grits initial discussion of this topic, County Judge Sam Biscoe's response, and then my followup column. Toward the end of last week, Judge Biscoe forwarded an additional clarification of his position regarding the citizens advisory committee that will analyze the proposals, and I responded, but forgot to post them. Find both notes below.

From Judge Biscoe:

For the record, Travis County has used citizens advisory committees  in anticipation of seeking voter approval of bond issues.  Citizens have periodically assisted with the selection of roads, parks, buildings and jail construction projects to put on bond issues for at least two dedades.  More than anything, citizens are able to help us pare down and priotize lists of projects.  Typically, the county advises the committee of outstanding debt capacity and possible projects, and  committee members recommend what projects to pursue.  Last time, the Commissioners Court decided to go to voters with an issue about $100 milion smaller than the one recommended by the committee.  Our policy is to complete the approved projects within five years.  Therefore, we have been appointing a new advisory committees every four to five years.



In my view, this is a time-tested way to obtain citizen input up front. The Commissioners Court retains ultimate responsibility for the projects.

To these comments, I replied thusly:

Judge,

With all due respect, in my experience these panels are 1) handpicked with a purpose, and 2) their outcomes are circumscribed and defined by the issues and proposals given to them at their outset. Such recommendations inevitably take on a life of their own, and later become justification in and of themselves for action -- self fulfilling prophecies like the SH-130 deal. Even your comments argued that a past decision was conservative because you didn't issue as much debt as an advisory committee recommended. That's why I think its existence provides cover and perhaps diminishes accountability.

On the advisory commission, perhaps we can agree to disagree; I know that's a common, traditional method, and not just your doing. On the issue of alternatives to incarceration, though, I know you and I share some of the same goals. I hope the court will try some of the proposals in my blog this morning before pressing for more debt. Or at least do both at once.

Best regards,
Scott Henson

I think it's really cool that Judge Biscoe has discussed this issue openly with the blogosphere, even where he and I may disagree. It shows a certain level of respect for one's constituents, and you've gotta like that. I haven't heard back from any of the other county commissioners, including my own representative Ron Davis, but rest assured Grits will continue to monitor the issue as it progresses toward a possible November 2005 bond election.

Yummm, Yum

Next time I'm in Palestine, TX, maybe this week, I know where I'm eating. Searching on Palestine this morning I found this tip from No More Mr. Fat Guy, an East Texas blogger documenting his 9-month diet before moving from this Very Red State to a Blue one, where as we all know you want to look your best. Anyway,

"Tonight is the night. The last night before the diet. I did it right too. All-you-can-eat-buffet at Coffee Landing, a seafood bufffet on Lake Palestine. I savored crab legs, fried scallops, fried catfish, broiled catfish, blackened cod, boiled shrimp, fried alligator, stuffed crab, fried okra, fried calamari, fried shrimp, corn-on-the-cob, banana pudding, blackberry cobbler, vanilla ice cream, and unsweetened ice tea."

As the chorus in the cornfield used to say on Hee Haw after such a litany, Yummm, Yum.

By the way, Dave Mann of the Texas Observer reported that the 72 alleged crack dealers in Palestine was more than the number of restaurants in the town. He's right. There are only 54 restaurants, including coffee shops, caterers, fast food, and Coffee Landing, which is out on the lake.

Texarkana Sheriff Wins Despite Tough On Crime Rhetoric of Opponent

In the forgot to update department: Bowie County Sheriff James Prince won a second term last week despite the tough on crime rhetoric of his opponent. Earlier, Grits offered approbation for Prince's courage to speak sensibly about the wisdom of arresting drug users as a front-line policy, even as his opponent pimped for a new drug task force and lathered on the tough-on-crime slogans.

Prince's win shows that honest talk from Democrats can trump tough-on-crime demagoguery with voters, even in Northeast Texas, but you have to be willing to tell voters the truth. That, and word has it Prince worked hard and ran a great campaign. Congrats, sir.

The Innocent and the Not So Innocent

Abolish the Death Penalty, a blog devoted to, well, you guessed it, reports on two possible actual innocence cases on Texas Death Row, Max Soffar and Anthony Graves. Soffar recanted what appears to have been a false confession (I understand why people do that, but I don't, you know?), while key evidence, as in a lot of Houston death penalty cases simply is missing. In Graves case, Harris County prosecutors may have hidden evidence, and the presiding judge has said he regrets his role.

On the lighter side, if you find far right wing views by powerful state officials a real laugher, ADP also points to an item from Governor Rick Perry's spokesperson. She announced the Governor would not issue a proclamation on United Nations Day, identical to one issued by President Bush, because he considers the U.N. too liberal and anti-American. I mean, I live here and sometimes I can't believe these guys.

A Policy Failure of the Highest Order

I can't stop thinking about Amy Donovan. She's the rookie Austin police officer who was killed in a tragic accident while chasing a pot-possession suspect in my neighborhood.

Thursday I called her a young woman with her whole life ahead of her, but that may not have given her all the credit she deserved. She was 37, my age, with four children, healthy, taking on new challenges, starting a new career. She was a mature woman making a choice to enter law enforcement, not some 22-year old adventure-seeker who thought it sounded fun. By all outward appearances, she was exactly the type of person we need in the Austin Police Department, and in law enforcement generally.

Hell, if you've raised four children you know more that's important about criminal behavior and psychology than most "experts" - a lot of everyday crimes stem more from rash, immature behavior than calculated malice. The 24-year-old Donovan was chasing when she was killed, for example, didn't wake up that morning planning to commit a second-degree felony.

I also can't help but feel badly for Donovan's partner. Both rookies, with no senior officer to rely upon, they were required to make split second decisions that turned horribly wrong. He must feel terrible. I know he'd do anything to take back what happened in those few seconds.

As I mentioned in Thursday's post, her death comes at a time that the Travis County Jail literally is stuffed to the brim, and simply can't find room for low-level drug possession offenders without spending $100 million (reg. required) at least. Already Travis County's incarceration rate is higher than the statewide average. (pdf file)

Which raises the question, if she'd arrested him, then what? We have no place to put him. And what would anyone gain from incarcerating him for pot, anyway? The number of marijuana arrests doubled in the last decade, 88 percent of them for possession, but marijuana use hasn't declined. County jails all over the state are busting at the seams with low-level offenders. Where does it all end?

That's what's been nagging at me all week. Donovan's death was worse than a tragedy, it was a policy failure of the highest order - someone died over the most trivial possible offense, one that in many parts of the country would merit at most the equivalent of a traffic ticket.

I'm sure APD will be looking to determine whether Donovan's partner followed procedure. They should also find out why their supervisor paired two rookies together, and determine if that's something the department should be doing in the future - I think the answer is almost certainly not.

That's the narrow picture. In the big picture, we need to rationalize our criminal justice policies with our values and our pocketbooks. Criminalizing the common invites risky, extremist behavior like that that caused Officer Donovan's death. This incident darkly dramatizes the costs of pot prohibition, not just monetary costs like building a new jail, but life and limb costs. Four children lost their mother, a husband his wife. A young man will go to prison for many years. A partner suffers guilt and remorse. A community mourns a tragedy.

But isn't the system set up to make another similar incident inevitable? Maybe next time it's the suspect who's run over, or an innocent bystander, but my God, for what?

Last Tuesday, the city of Oakland, CA showed us at least part of the way out of this mess by passing Measure Z, which made private, adult cannabis use the lowest enforcement priority for police. The same day, Columbia, MO authorized Proposition 2 which punishes misdemeanor marijuana cases with a ticket and max fine of $250. Now there's a policy that would lower jail costs and generate revenue. Both laws also make everyone safer by ratcheting down the intensity level of the drug war a notch.

Under Oakland's lowest-priority scenario, APD's only interaction with these four young men might have been a stern, "take it inside, fellas," while in Columbia they might be written a ticket, but couldn't have been arrested for less than 35 grams of pot. Decrimwatch points out that lowering the penalty or enforcement priority isn't a cure-all. Maybe Nicholas Jarmon still runs, maybe the same sad tale plays out; it's impossible to say. But if, as in Oakland or Columbia, marijuana enforcement was de-emphasized, possibly the same actions might not have caused the chain of events that led to this tragic accident.

My own mother died four years ago, and I've not come close to overcoming the loss, so I can't imagine what Donovan's family must be going through. They have my heartfelt sympathy and prayers.

A fund has been established to assist Officer Donovan's family, at:

Officer Amy Donovan Family Fund
via Velacity Credit Union
PO Box 1089
Austin, TX 78767
or call Austin PD @ 512.974.5017

I'm sending them a check and I hope you will too.

Latinos have come a long way in Dallas, baby

Two items jumped out from the Metro section of this morning's Dallas News: a column by Jaquielynn Floyd (registration required on all Dallas News clips) on the election of an out-lesbian, Latina and, even more shocking, Democrat county sheriff, Lupe Valdez, and another piece by Mercedes Olivera on the Texas Rangers' bloody history with Mexican Americans in South Texas.

Floyd's piece, entitled, "Oh, get over it: New sheriff has a job to do," takes just the right tone. Dallas should proudly note in passing the various milestones represented, then let Sheriff Valdez get on with her job. Given the state of the department she's got a lot of work to do. On the other hand, Floyd notes, "Given the cumulative performance of those who have held the job in recent decades, the bar isn't all that high." (As an aside, I should congratulate my college friend Susan Hays, who chairs the Dallas County Democratic Party, on this her most impressive victory.)

Olivera's piece, which appears above Floyd's on the jump page, reported on her conversations with several historians who studied the Texas Rangers' darker moments. We're talking here about alleged atrocities by the famous law enforcement unit, not the Arlington baseball team's annual August-September slide. The scholars will be speaking at a standing-room-only event at SMU scheduled for next Wednesday.

The tragic history described in Olivera's column actually led to the creation of the League of United Latin American Citizens, still the premier Latino civil rights group in Texas 80 years later. Olivera recounted:

"Benjamin H. Johnson, history professor at Southern Methodist University, has written an account of some of the massacres in his book, Revolution in Texas: How a Forgotten Rebellion and its Bloody Suppression Turned Mexicans Into America. (Ed note: the book got a plug in the New York Times on Halloween.)

"The killings came during a chaotic period, 1915-16, when the Mexican Revolution was still raging and the Texas Rangers were drawn in to resist Mexican bandits and insurrectionists intent on reclaiming the region for Mexico."

In some cases, historians say killings occurred on such a large scale that one is tempted to use the word genocide, particularly given that we're talking about a relatively sparsely populated rural area. Olivera continued:

"Dr. Johnson's book contains witness accounts of mass lynchings of prisoners and innocent Mexicans and Tejanos, as Texans of Mexican heritage were called. As many as 5,000 may have been slain.

"The Texas Ranger Hall of Fame in Waco also acknowledges that innocent people were killed.

"When Dr. Johnson first read the archives of public hearings held in 1919 by a state representative, J.T. Canales, 'it was like reading about the ethnic cleansing in the Balkans,' he said. Mr. Canales would go on to help found the League of United Latin American Citizens. 'It got people like Canales talking about their rights as American citizens,' Dr. Johnson said, and marks the first civil rights struggles in Texas by Mexican-Americans.

"Kirby Warnock wrote, directed and produced the film Border Bandits, based on the story told to him by his late grandfather Roland Warnock.

"The elder Mr. Warnock recounted the tale of how he witnessed a group of Rangers shoot two unarmed men and leave them on the side of the road. He returned later and buried the bodies in a grave that is marked to this day.

"Mr. Warnock spent about five years tracking down some of the descendants of victims and included the story in a memoir published in 1992. When the book came out, he said, he received several calls from people confirming the tale. "

Ben Johnson's book Revolution in Texas is a little pricey at $30, but I've ordered it anyway. It sounds from Olivera's column like his work is invaluable.

Today, some things haven't changed, but a lot has. About a dozen Latinos now serve in the Texas Rangers, which still exists as an elite division of the Texas Department of Public Safety. And voters just elected a lesbian named Lupe Valdez Dallas County sheriff. One imagines J.T. Canales would have been amazed.

DoJ CRS Stops Squeaky Wheels From Turning

I'm no fan at all of the Justice Department's Community Relations Service. In my experience, they swoop into town after some major civil rights violation -- in Houston it was the Pedro Oregon killing, in Austin it was the Cedar Avenue Valentines Day Police Riot. Then they suck all the community's anger and momentum for change into seemingly endless meetings where the police department gets veto power over every idea.

The end result is usually an agreement with zero teeth -- there's just no way for the community to enforce their rights. Typically, after months of excruciating process, the Justice Department informs the community it's a "facilitator" not an enforcer of the agreement.

Apparently the Justice Department's CRS has convinced folks in McKinney, TX to participate on one of these marathon sessions. According to the McKinney Gazette: "Residents have complained of increased racial profiling since March as police seek information about an unsolved quadruple homicide. Police arrested and later released three men from the area who they believed were involved with the slayings."

So, the complaints that brought the group together related to racial profiling, police conduct in a particular investigation, and the treatment of several specific suspects who were later released. It's worth noting, though, how the DoJ CRS has diffused the issues. The group "explored more than a dozen issues affecting the community including the need to establish a crime watch program, improve eastside infrastructure and develop the local economy," the Gazette reported. The issues about how police conducted the investigation that spawned the meetings no longer appear to be on the radar screen, to judge by this report.

"Carmelita Pope Freeman, regional director of the agency's Community Relations Service, has urged patience and trust in the lengthy process," as I mentioned, I've heard that before, "saying the federal government's involvement means change will follow." We shall see. Sadly, because I know a lot of local activists are working hard at these meetings, I predict the federal government's involvement means nothing will happen.

It's difficult to understand how well-intentioned folks, at this point, can wait around for John Ashcroft to protect their civil rights. I've come to believe that the only way to protect our rights against police abuse in this conservative environment is to make demands of state and local officials, backed up with as much political clout as you can muster. Squeaky wheels get grease. Unfortunately, the DoJ Community Relations Service has figured out that you can also muffle squeaky wheels with hours, weeks and months of endless, pointless meetings.

Palestine case getting attention

The Texas Observer covered the Palestine case this week in their first ever web exclusive, and since then folks like Last One Speaks, Off the Kuff, D'Alliance, Vice Squad, and Drug War Rant have picked up the story in the blogosphere. (Additional attention: DRC Net included the story in their weekly newsletter on Friday.)

Grits' coverage of the 72-person bust by the Dogwood Trails narcotics task force, the same type of task force involved in the Tulia scandal, began here, was continued here, and was updated here and here. Grits also commented on the same task force's anti-meth campaign, and a case where they shot a young man who fled to avoid arrest for a misdemeanor marijuana possession warrant.

Were there 72 crack dealers, all black, in tiny Palestine, Texas? Read Dave Mann's article in the Observer and find out the real story.

Officer Killed Enforcing Pot Possession Law

An Austin police officer was killed in my neighborhood the other night, right over near the Sam's Barbecue. Initial reports in the Statesman of the officer's death said that Officer Amy Donovan and her partner were looking for "drug dealers and prostitutes" when she started chasing a suspect for "acting suspiciously" (registration required to Statesman links). She took off on foot. Her partner followed in the car driving in reverse (they were both rookies), and accidentally ran over and killed her.

Now it turns out the truth is more mundane than drug dealers and suspicious activity: Yesterday the Statesman reported she and her partner smelled marijuana, so they rousted four suspects and chased one of them when he ran. That's right, she was killed trying to arrest a someone for sparking a joint. According to the Statesman,

"Patrolling an alley behind East 13th Street, Austin police officer Amy Donovan and fellow rookie Adrian Valdovino had spotted a Chrysler with at least two people inside and two others outside the driver's-side door.

"They also smelled marijuana, according to court documents released Wednesday.

"That led them to investigate further, prompting a chain of events that ended in Donovan's death.

"When one of the suspects fled, Donovan gave chase while Valdovino tried to use the patrol car to block the fleeing man, according to the documents. The car struck Donovan, pinning her against a utility pole.

"Donovan, a 37-year-old mother of four, died at Brackenridge Hospital about three hours later, becoming Austin's first female officer to die in the line of duty."

Officer Amy Donovan died to enforce a Class B misdemeanor pot possession law.

Truly, how many senseless victims will the drug war claim before we're no longer willing to pay the cost? The Travis County Jail can't find space for casual drug users, but trying to arrest a pot smoker literally cost this young woman her life.

Please don't think in any way I'm blaming Officer Donovan or trying to score political points off her tragedy. I honestly sympathize with her family and coworkers. It's an irrational system I blame. I find it unthinkable that an idealistic person with her whole life ahead of her died over something so trivial. I could care less if Nicholas Jarmon gets high. That's nothing compared to society's interest in preventing common circumstances so quickly leading to tragedy.

Jarmon's decision to flee could now cost him 2 to 20 years in prison, since evading arrest becomes a second degree felony in Texas when a death is involved. That the incident may destroy his life, too, increases the costs mightily. Obviously no one intended for this to happen.

Just two weeks ago I blogged about a young man in East Texas who was shot by a drug task force cop when he fled over a marijuana possession beef. I suppose the harshest law and order maven might claim the two incidents together justified the cycle, that the death of the police officer justified harsh tactics in the drug war like chasing down and shooting someone over pot possession. I take no comfort from any of it. All I see is a growing body count that I can't justify.

Jail Expansion Raises Issue: What is Justice?

County Judge Sam Biscoe finds himself in an awkward position. A decade of mismanagement by the Travis County Commissioners Court now ties his hands, he reports, and he hopes to ask a citizens "advisory commission" for permission to ask voters for $70 - $100 million in bonds. His comments came in response to a Grits post calling for alternatives to incarceration instead of jail expansion.

You can read the slightly garbled transcript of the recent commissioners court meeting on the subject here.

Pressure on the county to solve the overcrowding issue is real enough, particularly with regard to the threat of losing "variance beds," and I don't want to deny the county's conundrum. I do think, though, that room for improvement exists without a new jail. Let's look at the issues separately.

First, to the 575 variance beds. According to the October 1, 2004 Jail Population Report (pdf, p. 7) from the Texas Commission on Jail Standards Travis County presently houses 316 pre-trial defendants for misdemeanors, and 261 pre-trial defendants charged with state jail felonies. Most misdemeanor defendants are non-violent, and all but a handful of defendants charged with state jail felonies have been busted for low-level drug possession -- less than a gram of powder, which is less volume than the contents of a Sweet-n-Low packet.

To the extent these inmates are mere drug users, two solutions present themselves. First, Travis County law enforcement agencies (they'd need APD's cooperation) could shift their enforcement priorities away from busting low-level drug possession cases. Second, judges could set low bail for drug cases, say, $50, to free up needed bed space for more dangerous people.

Doing so wouldn't harm the interests of justice. Testifying to the Commissioners Court in 2002, Katy Broderick, formerly a staffer in the county's justice and public safety area, had this to say about the folks we're incarcerating:

"I was just amazed. That really gets down to, as Ronnie Earle likes to bring to us, what is justice? What I was looking at that morning [in the courtroom] was technically justice according to what the law is, but I don't get any feeling that there was any kind of -- kind of justice according to how taxpayers would think about the huge sums of money that were spent related to somebody getting arrested, processed, throwing an attorney at them, spending time in our system and it comes down to 10 days in jail because they decided to do something that was really not ... [of the] level that you would spend that kind of money on and throw the book at. I don't know. I was amazed that morning. Not really a question, just an observation. I think people should be shocked to see the kinds of cases ... I was amazed at the petty stuff that there was no lesson learned. There was no restitution to the community. Somebody got to stay in our facilities and have a, three squares and food, clothing, medicine. That wasn't justice." (ed. note: small, obvious transcription errors corrected)

She's absolutely right. So why are we doing it? Quit arresting these people. Quit prosecuting them. They'll quit filling the jails.

A little more than a third of the jail population are felony defendants awaiting trial. Defendants charged with possessing relatively small amounts -- e.g., 1-4 grams -- could also benefit from a low bail policy. The fact the jail is overcrowded means by definition bails are too high.

Judge Biscoe points out that the jail population has actually declined recently, and I want to acknowledge his leadership in insisting that de-incarceration is on the table -- i.e., lowering the number of inmates instead of only building more jails.

Unfortunately, to date the county has utilized only the most conservative tools to lower the inmate population -- expediting pending cases faster and diverting C misdemeanor arrests directly to a magistrate have been the greatest contributors to jail population decline. But obviously it hasn't been enough. The Commissioners Court needs to do more, with the understanding that real solutions require working out details with DA, local judges, and Austin PD.

Lowering the jail population any more will require courageous, hard decisions -- it won't be as simple or as clean as creating a "rocket docket" to make the system work faster. But that's the kind of leadership necessary to resolve the jailing crisis in a wise and responsible way.

Why not limit the length of probation for non-violent offenders to a maximum of one year for misdemeanors? That way, the number of new jail entries would decline by the number that would otherwise have been incarcerated in that second year for technical or other violations.

Why not get the Travis County Sheriff and Austin Police Department to ban both consent searches and all arrests for Class C misdemeanors, under any circumstances? Those two measures would not only lessen the jail intake but free up officers' time and decrease the amount of discrimination against minority citizens.

If we can't afford to lock people up, why not lower the frequency of drug testing for probationers, or stop it altogether for all but violent offenders? Drug use should not in and of itself justify incarceration, and when the jail is full, space should be reserved for offenders that pose a risk to the public.

Judge Biscoe proposes creating a citizens advisory committee to hash out the issue, but that strikes me as passing the buck. The commissioners court understands the issues -- they're just looking for political cover. An advisory panel won't give it to them. Building more jail cells is really the easy way out. That's why politicians prefer that approach to setting smarter polcies.

Before it can justify issuing bonds for jail expansion, the county needs to take more dramatic steps to limit jail intake like those described above. Then, when it's time to raise our taxes to pay for all this debt, they can tell the voters there really was no other choice.

Yup, that's about right

Michael Bluejay gets it about right with the new Photoshop excercise on his home page. "America has made its choice," he announces.

Medical Marijuana = Election Highlight

Before all else, Talk Left summed up my post-election feelings to a T. Thank you. And the new blog, evoting-experts performed admirably during yesterday's chaos; their posts are worth reading.

Meanwhile, my friends at Texans for Medical Marijuana sent out the happiest email I read today, so I thought I'd share it:

Dear Scott,

Medical marijuana ballot initiatives around the country were victorious last night, proving it is a non-partisan issue. Montana was big. Montana is now the 10th state in the country to protect medical marijuana patients from arrest.

At the municipal level voters also passed measures that protect medical marijuana patients and doctors. In Ann Arbor, Michigan voters amended the city charter to permit the medical use of marijuana. This comes on the heels of a 60% to 40% win for medical marijuana in Detroit on August 3rd.

Columbia Missouri voters also approved a local medical marijuana proposal, which makes it legal for chronically ill patients to possess and use marijuana with a doctor's consent.

When people have a chance to vote for medical marijuana it wins. In Texas however, we have another challenge. We must pass a medical marijuana law through the Texas State Legislature. The session starts in January and I hope Texas patients can count on you to help get a bill passed. Instead of directly voting we need people to lobby their representatives to vote for legislation.

Towards that end, we are mailing out our first campaign update letter to the folks on our list that we have no other way of contacting. If you live in the Austin area I need your help stuffing envelopes and eating pizza this coming Monday November 8th between 7 and 9 pm. Our office is at 1210 Rosewood Avenue. Please call the office (512-220-9209) or email me if you need directions. Thank you for your support and participation. I hope to see you Monday night!

Noelle Davis
Executive Director

www.texansformedicalmarijuana.org

If you can't make it for envelope stuffing, join TMM's mailing list or donate online. These folks are doing a great job.

What to Do Now: Thoughts on the morning after

I don't know what all the whining is for.
John Kerry sucked, okay sure, Bush sucked more.
But even if Kerry won the big show last night,
Those who want change would still have to fight.

Maybe it's better if we don't all feel
The Prez will take care of us, that shit's not real.
Dems backed the war and the Patriot Act.
As responsible as Bush is, still that's a fact.

One idea comes as the blogosphere chatters,
What if the two parties really don't matter?
What if the issues were pushed to the fore?
Healthcare, environment, end the drug war?

Why don't we tell Rs to do what we want?
Make all the arguments, skewer all the cant?
Hold them accountable, never back down,
Bring them constituents from their home town.

We spent so much time pushing Kerry's ambition
But did that make liberals abandon our mission?
Next year congressional Rs are in power,
But they're still politicians, still born to cower.

Bush passed drugs for seniors and prison drug treatment,
Not partisanship, just pandering he did.
So keep up the pressure and never forget,
When Rs run to the middle, they run to the left.

AL Task Force Chief Guilty of Extortion, Theft

A drug task force commander in Alabama pled guilty Tuesday to three counts: extortion, lying to the FBI, and misuse of task force funds. He'd been indicted in July on ten counts, most of which stemmed from cases where he extorted money from people in exchange for not arresting them. He also allegedly "misapplied" $5,000 in federal task force grant money for his own uses.

Recently the drug task force has been focusing on pursuing marijuana busts.

Carmen S. Adams, Special Agent in Charge of the Birmingham Field Office, Federal Bureau of Investigation stated, “A law enforcement officer who engages in criminal activity compromises the core values and institutional integrity of an honorable profession. Such actions reflect a lack of respect for those we are sworn to serve, and ultimately diminish the credibility of all law enforcement in the eyes of the public.”

Regular Grits readers know this isn't an unusual case. Special Agent Adams sums up my view entirely on why these drug task forces should be abolished.

Judge Sam Biscoe on Jail Expansion

I sent him my post from last Thursday questioning the wisdom of the Travis County Jail expansion, and Judge Sam Biscoe responded. I appreciate that, and I append his comments in full, here. I still don't think the county's done enough to find alternatives to incarceration, in particular related to probation length and conditions. But I'll respond more fully later, and for now let readers see Judge Biscoe's take on how we got in this mess:

11/2; 5:31 p.m.

Mr. Henson, thank you for emailing  me your comments.  I will make a few additional points that you may find interesting and important.



First, more than 12 years ago the Texas Commission on Jail Standards authorized Travis County to use about 1200 beds in excess of total design capacity.  We call these "variance beds."  The Commission is authorized to grant such permission; it is also authorized to take it away.  Over the past few years, Travis County has returned more than one- half of these beds, but still uses 575.  Two years ago, the Commission informed us that it wanted a plan from us to return the rest of the variance beds.  It did not give us a time- table.



A year ago, the Commission took back Bexar County's variance beds, effective that same day, after concluding that Bexas County was not doing enough or moving fast enough.



The law is clear that the Commission has the authority to  de-authorized use of the 575 variance beds in Travis County.  And after 12 years, it is difficult for us to argue that we were not given sufficient time to prepare to function without them.



Unfortunately, up until two years ago,  variance beds were not on anybody's radar.  With the appointment of a new Executive Director (Terry Julian for Jack Crump) and a change in the composition of the Jail Standards Commission itself, however, the decision was made to cancel use of variance beds statewide, and all counties, including Travis,  were put on notice.  The threshhold question  for Travis County is, how much longer will the Commission authorize us to use the 575 variance beds?



It will take us two years to get the money, design and build 575 beds.  If the Commission authorizes use of variances beds for two more years or less, our hands are tied.  It is under these circumstances that I am willing to consider  the issuance of Certificants of Obligation for the 575 beds.



Since the CJC project, state law has authorized "design/build" contracts, in which a private sector contractor is paid an agreed upon total price after completion of constuction of a particular project.



Second, you and I are in complete agreement on the importance of alternatives to incarceration.  Indeed, we have been working on innovative programs for more than two years.  As a result, today there are 2450 inmates in our custody; whereas, in 2002, there were 2800.  We are taking advantage of every opportunity to exhance and expand these programs, with an eye toward saving county jail beds for inmates who

must be confined and assisting those who can be salvaged.



Unfortunately, the new beds under discussion contain very few additional beds.  Almost all of them are replacement beds.  Here's the explanation:  in addition to the 575 variance beds, another 888 new beds are to replace beds that are in "poor" condition.  Thus, construction of a total of 1463 beds without a net gain of a single bed.  The 888 old beds do not have to be replaced, but something must be done to address life and safety issues, which will cost a substantial amount periodically and requires the continued use of an old and inefficient system.  These old beds were called to our attention during the past 12 months as part of a jail conditions study.



In my view, we should appoint a citizens advisory committee to help us review and assess the need and determine the best solution to recommend to taxpayers.

Hopeful, in Austin

If Kerry is winning, hooray, hooray.
I'll feel so much better today, today.
Blue skies are coming our way, today
If Kerry is winning today, hooray.

If Bush is winning we'll cry, boohoo.
Four more years governed by that yahoo.
Invading countries without a clue.
Lies without consequence will ensue.

If Kerry wins then we'll shout hooray.
Please, God, no recount today, okay?
Ohio, Florida, swing our way,
And pick up a spare to oust Tom DeLay.

GOTV, Y'all

Texas Observer Goes to Palestine

No time to do more now than link to this new story by Dave Mann of The Texas Observer, a web exclusive on a large, Tulia-style mass drug bust in Northeast Texas. More later, but check it out.

Kicking them upstairs

APD ignores past disciplinary problems when promoting officers into supervisory positions, the Austin American Statesman reported (registration required).

The editors at the Statesman deserve credit for giving some reporters enough leeway to perform long-term investigations. Their detailed stories over the last two years about the Austin Police Department have easily been the best of their reportage since Richard Oppel took over the helm.

On Sunday, Tony Plohetski delved into a long-simmering police accountability issue -- the department's tendency to promote people to supervisory positions who've had prior disciplinary problems. APD briefly wouldn't allow officers to take the corporal's test if they'd had a suspension in the previous year, but the police union shot that reform down.

Plohetski found a lot of new information. A quarter of APD's 224 supervisors have received a disciplinary suspension at some point in their career. What kind of things have police supervisors been suspended for? Reports Plohetski:

"The disciplinary incidents, tallied through August, may have provided a window into each officer's judgment and performance, but Police Chief Stan Knee's options were limited when their promotion papers reached his desk. Rather than bypass them, he moved them up the ranks based on their scores on oral and written exams.

"The misbehavior that resulted in suspensions for the 55 supervisors included kicking a handcuffed suspect, lying to internal affairs and driving dangerously with a prisoner. Knee promoted 31 of the officers after their suspensions — three of them within a year of being disciplined.

"The 31 include four who had two suspensions before Knee promoted them and three who were suspended again after promotion — for infractions that included knocking a man's feet out from under him, conducting an illegal search and failing to arrest a fellow officer who appeared to be driving drunk.

"The disconnect between discipline and promotions is by choice. State law sets up written and oral exams as the measure for who gets to rise in rank, and the city can alter that through employment contracts with the police union."

What he doesn't say is that these suspensions are only a small subset, a minority at most, of the total number of sustained complaints. Under Texas law, even sustained complaints at civil service cities are closed records unless they result in a suspension without pay. That means if an officer is reassigned instead of suspended for kicking a prisoner, neither the Statesman nor anybody else can look at the records. It's likely up to two thirds (see the chart) of sustained complaints against police supervisors remain shielded from public view. And since Chief Knee has long refused to install a uniform disciplinary matrix prescribing minimum punishments, and we know from prior court testimony that APD brass treats Internal Affairs cases unequally, ignoring or downplaying misconduct from more senior officers, there's a good chance some of those secret disciplinary problems were of a serious nature, but swept under the rug.

Oddly, Plohetski did not report that the Texas Legislature took up this topic in 2001. Then-House Criminal Jurisprudence Chairman Juan Hinojosa (he's since become a state senator) proposed HB 3492 (search on the bill number in the 77th session here), which would have subtracted points from promotions exam scores for sustained allegations of serious misconduct. See the ACLU fact sheet supporting the bill here for more detail. Testimony in committee (I know because I gave it) focused in part on former Austin police officer Hector Polanco, an officer who allegedly coerced confessions and was promoted to lieutenant, even after Chief Knee's predecessor tried unsuccessfully to fire him.

The police unions reacted to the bill as though we'd proposed eating their children, issuing the most grave pronouncements about our cop-hating motives. I was always pretty proud of that bill, even if it still doesn't get much attention.

Sort of the point

Lt. Mike Amos, the former Commander of the Panhandle Regional Narcotics Task Force that was responsible for the infamous Tulia drug sting, announced his retirement.

The Amarillo Globe News said his "service is marred, however, by the controversy surrounding the Tulia drug bust, which operated under Amos' supervision." The Globe News quoted Col. Robert Frances saying, "If (Tulia) is what people remember him by, it's certainly unfair. A lot of that, he had very little control over."

Well, that was sort of the point, wasn't it?

Sy Hersh: Greatest journalist ever?

This afternoon I went to see Texas Monthly's Evan Smith interview Seymour Hersh at the Paramount Theater downtown. Hersh was in town promoting his new book, Chain of Command: The Road from 9/11 to Abu Ghraib, and Smith interviewed him before a packed house as part of the Texas Book Festival.

Despite Laura Bush's high profile role with the festival, she was nowhere to be found in the crowd of Hersh supporters, and frankly she wouldn't have been very comfortable had she come. Hersh, whose primary journalistic home is The New Yorker, skewered the administration from start to finish, particularly the neoconservative cabal he charges has successfully duped the president and the nation into war.

I wasn't surprised by Hersh's bluntness. Accounts of other Hersh speaking engagements sound like we heard his basic spiel today. It was still a high impact talk, though; that somebody with that level of insider knowledge and access to power believes the war in Iraq has been "already lost," it's stunning, even when you know it's coming.

I haven't read Hersh's book yet, though we left the book fair with a copy. I do read his stuff in The New Yorker. But as the man who broke the stories about the My Lai massacre in Vietnam and the Abu Ghraib torture scandal in the Iraq War, it's fair to question, "Is Seymour Hersh the greatest American investigative journalist in history?"

For me, I can only think of a couple of competitors: Lincoln Steffens and I.F. Stone.

The argument for Lincoln Steffens stems from his taking investigative journalism to a higher plane than at any previous time in American history, spawning the term "muckraking" in the process. Steffens focused on cities, and his exposes of corruption changed American perceptions of government forever. I'm not sure he was the "greatest" journalist, though. New ground Steffens pioneered using foraging techniques, Stone and Hersh later settled, planted and harvested using methods that would have astounded the tart-tongued Steffens.

The only other American investigative reporter whose work deserves to be mentioned in the same breath as Sy Hersh would be I.F. Stone. I think the main difference between Stone and Hersh would have to be that Hersh's work is appreciated by a huge portion of the public -- he received a standing ovation in the Paramount, and a few folks even stood when he was introduced. By contrast, Stone was ostracized and demonized for his efforts, and survived by creating a niche market of politically sympathetic opinion leaders, which he proceeded to fill for several decades.

In a way, Stone was a proto-blogger. His I.F. Stone's Weekly was relatively short and punchy, and it only went to folks who particularly wanted it -- he didn't rely on mass distribution, but niche targeting. Using today's Internet technologies, Stone would have easily found a mass audience and taken on guys like Josh Marshall, who's pioneered investigative journalism in the "new media."

Hersh rivals Stone because both men's careers demonstrated decades of excellence, not just one or two big stories -- Bob Woodward is still living off the credibility earned from the Watergate story. But Hersh isn't sitting around on laurels from his Pulitzer covering My Lai. He's still in trenches more than thirty years later.

In the end, I think the edge goes to Stone for the following reason. As great as he is, Hersh's journalism relies on top level sources confiding in him, and astonishingly, they do. In many cases, these are sources Hersh has cultivated for decades. At age 67, officers he's known for thirty years have moved up the ranks to become Colonels and Generals now. That's amazing and great, and incredibly useful.

On the other hand, I.F. Stone's methodology used public documents and open records laws to piece together the truth, and in that sense his methods are more accessible to the rest of us. If the three-star General won't talk, Hersh wouldn't get the story, and that source just isn't available to most journalists. Hersh is a special man with a special talent and a key and hard-to-replicate role in American public life. By contrast, Stone's methodology spawned the type of blogger's journalism method where one takes information already out there, and with one's own research adds value to it, reprocesses it, and kicks it back out into the public arena for more debate and vetting. They didn't call Izzy Stone the father of modern investigative journalism for nothing.

In that sense, I think Stone made the more enduring contribution to journalism as a profession, while Hersh's writing probably had the biggest political impact of any American journalist in the last century.

In any event, today I got to see America's greatest living journlist interviewed live, and he didn't disappoint.

Feeling Good About Texas

At a dance hall down in Texas
That's the finest place to be.
Oh the women, they all look beautiful
And the men will buy your beer for free.

Lyle Lovett,
That's right you're not from Texas
(Texas wants you anyway)

Some days I feel really good about being a Texan. Not every day, but today I do. Perhaps it's relative, because as I check around at my favorite blogs I find things aren't that great everywhere else:

The esteemed Pete Guither at Drug War Rant had his home-district Congressional endorsee reject his donation to protest his anti-prohibition views, while her opponent demagogues against Pete in direct mail. (Hard to believe she's sending money back -- she's getting her ass kicked in fundraising.) I say good for Pete for outing a coward -- another spineless Dem wouldn't have been worth much anyway.

Meanwhile, Baylen at D'Alliance consoles himself that a Green Party DA's candidate from Madison, Wisconsin is talking sense on the drug war, even though she's running against a Dem incumbent who will win.

And drug war critics from High Times to the aforementioned Guither have endorsed Kerry despite a rotten record as an over-the-top drug warrior. In perhaps a moment of excessive fervor, an outraged Last One Speaks found Guither's ostracism by a spineless Democrat reason to vote for Kerry. (Bush is frankly better on a lot of the drug war stuff I care about, than Kerry, though I'm with Natalie Maines and wouldn't endorse him for dogcatcher.)

These blogs are plaintive cries from good folks having to live with half a loaf or less, and I empathize.

Yesterday, I drove to the Metroplex for a well-attended town hall meeting held by the League of United Latin American Citizens, in Grand Prairie, halfway between Dallas and Fort Worth. There I listened to Ray Allen, the Republican chairman of the Texas House Corrections committee -- which oversees the Texas prison system -- refer to the Drug War with comments like, "Let's put people that we are afraid of in jail, not the ones that we are only mad at."

A life-long pro-life and gun-rights activist, Chairman Allen endorsed with few qualifications the findings of fine, recent study by LULAC, which lays out the case against overincarceation based on pragmatic realism, compassion and human rights. Allen called for increasing the parole-release rate, even after his opponent had called for lowering it, hoping to run to his right as tougher on crime.

My friends Ana Correa of LULAC and ACLU's Ann del Llano opened the event tag-teaming to describe eight "myths" about the criminal justice system -- a critique that basically calls for substantially reducing sentences for non-violent crimes and overhauling the probation and parole systems. The crowd issued audible gasps and cries of "no way" when Ann revealed that Texas has identified 1,941 separate acts we've labeled as felonies, including 'electrocuting fish,' and in some cases, prostitution, graffiti, and stealing cable. One in 11 Texans is a felon, and one in 20 is currently in prison, on probation, or on parole. The Fort Worth Startlegram coverage said the audience appeared "stunned" by the statistics. They were almost equally stunned when their Republican state representative stood up and told the crowd, to closely paraphrase, since I didn't take notes, 'everything these extraordinary women just told you was true.'

Allen said the agenda ACLU and LULAC were proposing had historically been considered "liberal," but that the groups brought him only the best of facts and analysis. He'd come to be convinced of the positions in the report because of his conservative principles, he said, not in spite of them. The cost to the state, the harm to inmates' future prospects and their families, and evidence that incarceration doesn't stop recidivism, but other methods do, were the main reasons he cited.

This isn't just a man bites dog story, Chairman Allen in 2003 actually proposed a bill lowering the lowest level drug possession crimes to a misdemeanor. In the waning days of the session, a nationally touted compromise bill passed that kept the charge at a felony, but required judges to sentence defendants to probation and treatment instead of incarceration on the first offense, a provision that affected 4,000 people this year. Allen told Governing magazine he was able to do it for the same reasons Nixon could go to China -- his hard right positions on other issues make him immune to attacks as soft.

As a matter of full disclosure, I worked on Chairman Allen's re-election campaign professionally this cycle -- my first Republican client ever in more than 60 campaigns -- and I'm also listed as a reader on LULAC's report; in other words, I'm conflicted out the wazoo so take it as you will -- I make no pretense at objectivity.

Still, the admission requires some small explanation for my Democrat friends. In this partisan era, crossing party lines inevitably makes some people mad, plus he and I disagree on a lot of important stuff, starting with choice, not just abortions but schools. I chose to work for Allen precisely because of his leadership on the criminal justice issues described above. His district was targeted by pro-choice groups and Democrats as one of the few competitive seats in North Texas, and he's presently in quite a nasty race. To my way of thinking, though, if Allen loses, the Texas Legislature will still be pro-life, but criminal justice reformers would lose an important Republican friend, and a committee chair to boot. That made it a no-brainer. Yesterday I was proud of Chairman Allen, and it made me feel completely comfortable, perhaps for the first time, about the decision to help his campaign.

House District 106 is becoming competitive largely because of a growing Latino population, so whether or not Allen survives on Tuesday, Latinos and LULAC will play an increasingly important role in the district's future. Saturday, Allen came with the exact message LULACers wanted to hear -- shift money away from incarcerating non-violent offenders and toward schools and healthcare -- but it remains to be seen if it won him their votes. If he wins and can deliver at the Legislature, Allen may help demonstrate that progressive positions on the Drug War can earn Latino votes in swing districts in Texas and the Southwest.

If THAT happens, then the light at the end of the Drug War tunnel may not turn out to be a train. I could be kidding myself, but you've gotta try something, huh?

Ira Glasser's 'Busted!' reminds of Texas' woes

Last night I spoke on behalf of ACLU at an event sponsored by the Libertarian Longhorns, the Big L Libertarian group at UT-Austin, who held a refreshingly non-election-related evening dedicated to informing students what to do if you're stopped by the police.

They showed a film by a group called Flex Your Rights, "Busted!: The Citizens Guide to Surviving Police Encounters," which is narrated by famed former ACLU President Ira Glasser. If you haven't seen it, let me suggest you purchase a copy online, and get a few more as gifts for every young person you know, or at least the ones you wouldn't want to see in jail. Everybody makes mistakes, but knowing what's in that video easily could make the difference between whether your child, niece, nephew or loved one's mistake lands them in jail or not.

Anyway, the third segment of the show dealt with what to do if police come to your home. In the what-not-to-do segment, officers bullied a 20-year old girl amidst a house full of nervous partygoers into admitting she had pot and taking them to it in her bedroom. As they cuffed her, they announced she was under arrest for felony "distribtion" because it was being smoked by others at the party.

"Distribution"! That's the same word the assistant district attorney used in the Palestine case72 black folks, almost all living in the Palestine city limits, were arrested in a Tulia-style mass-bust by a drug task force)

What do you think of when you hear "drug distribution"? Hard to avoid the obvious implication the person is a drug dealer. But prosecutors these days consider "distribution" just passing the joint, or in the Palestine case, the crack pipe. That overinflates the charges and lets the drug task force masquerade 72 people as dealers, an impossibly high number, as though they'd taken down Al Capone's liquor empire in a town of 17,000.

I should add that another thing became clear in the Q&A with students after the video. Police have much more authority over travelers at a traffic stop in Texas than in most states, or in the typical states for which the video is aimed. In Texas, the US Supreme Court upheld our law in Atwater v. City of Lago Vista allowing arrests for "Class C" misdemeanors, which are misdemeanors for which the only punishment is a fine, not incarceration.

Months after the Supreme Court ruled such arrests were legal, the Texas Legislature passed a law banning them again, but Texas Governor Rick Perry vetoed the bill, and has pledged to veto it again in the future as a sop to the state's largest police union.

After (where Atwater, and thanks to Governor Perry, if a driver says "no" to a request for a so-called "consent search," the traffic offense that was the pretext for pulling the driver over can magically become an offense that necessitates the driver's arrest, after which they will be required by law to search the car as part of an "inventory search." After this scenario is explained to a driver, who would rationally refuse a search?

I told the kids that they should. Legally, yeah, a Texas cop can just haul your ass to jail. Pragmatically, it's a different story. Most county jails are full to the brim, and nobody can afford to be processing and incarcerating traffic offenders. I argued that, while they cultivate a Wyatt Earp image, police officers are better viewed as comparable to middle management bureaucrats in the Social Security system. For tough guys, they're risk averse. Their actions are circumscribed by a byzantine set of rules hardly anybody else undertands, and they get in trouble when they cross the line.

Certainly there are bad cops, sadistic cops, racist cops, but if you're lucky enough to get the typical officer rather than the creepy, criminal outlier, most aren't willing to perjure themselves just for the chance to bust you with a joint. In Texas these days, most but not all police cars performing traffic enforcement have cameras in the cars, many with audio, and officers know that theoretically every action could be second guessed later, even if in practice it doesn't happen often. That makes the average officer more likely to follow the rules and conventions If you assert your rights and don't consent, arresting you just to search the car would still be a rarity, even after Atwater.

Politely but firmly decline every search request, even a pat down, and ask near-constantly whether you're free to go. The officer understands the code words, too, and unless he's willing to violate the consent pretext in a way that could come out unfavorably later, he'll likely respect them.

It's not great advice, but the only other choice is to consent, which definitely gets you searched 100% of the time. Hopefully I told them the right thing. (ACLU-national's otherwise excellent wallet-sized "bust card," entitled "What to do if you are stopped by the police," doesn't address the issue.) It's a hard question; I'm not a lawyer and it's the best I've got.

Perhaps Glasser, et. al can address Atwater in Busted II, The Sequel.

(Additional note: Since I was representing ACLU of TX at the event, my boss Will Harrell would want me to reiterate that I'm not an attorney, and nothing here is intended as legal advice. SH)

Warning: Web Business Scamming Inmates' Familes

A web business called "Love from Home"is scamming families of Texas inmates by promising to send their loved ones gifts the prison system won't allow. They list Texas (warning, if you click through, do not use their service) as one of the states where they will ship their products. However, there's some fine print, or in the web world, a "Conditions" page that states, in part,

"Love From Home is not responsible for packages that are considered contraband.

"Contraband is defined as: Any item that an inmate is not allowed to have in his/her possession while being incarcerated.

"Contraband is also defined as: Any item that is in excess. i.e. If an inmate is allowed to have 3 pairs of socks and they receive a pack of 10 pairs, seven pairs are considered contraband.

"Love From Home will not refund any items that are considered contraband."

Get it? They won't guarantee the prisons they "serve" will actually allow the items they sell to be mailed to the inmates, and according to the Texas Inmate Families Association, the Texas prison ombudsman has told the company that in Texas they cannot. Anything purchased through this company will be confiscated, and the families' money will not be refunded.

The prison ombudsman writes, almost with a sigh, "A message has been sent to the website advising them that TDCJ does not allow these types of product to be sent to offenders, however, this is a privately run website, and we have no control over the information posted on this website."

Wow. Texas has incarcerated 155,000 people in its prison system, but when a scam artist starts to defraud those inmates' families, the criminal justice system just throws up its hands, announcing, Well, we can't control what they say on their website. You know that crazy web thing, anything goes out there.

What? How is this not being prosecuted as fraud? Incarceration places a huge burden on families, from the loss of income to mourning absence to extra expenses for travel and collect telephone calls, inmates' families are already struggling. Preying on such vulnerable folks is lower than a snake's belly.

And a "justice" system that knowingly lets it happen can barely claim to be worthy of the name.

ACLU: Limit Cops Operating Outside Jurisdiction

This afternoon ACLU of Texas delivered testimony, authored by yours truly, to the Texas House Criminal Jurisprudence Committee related to one of their Interim Charges, which are complex issues committees work on in between legislative sessions to prepare legislation. The charge in question reads as follows:

Interim Charge Number 3:
Review Code of Criminal Procedure Article 2.13 and Art. 14.03 as they relate to a peace officer’s authority to act outside of the peace officer’s geographic or territorial jurisdiction.

I've removed some of the technical and legal detail and adapted the testimony slightly for the blog format, but here's the gist of what ACLU had to say:

Issues

A. Byrne Grant-Funded Drug Task Forces

Drug task forces raise specific jurisdictional issues relevant to the committee's charge. Though section 14.03(g) of the Texas Code of Criminal Procedure (CCP) disallows officers from detaining citizens for traffic violations outside their jurisdiction, Byrne-grant funded drug task force officers routinely do so.

A recent study by ACLU of Texas entitled Flawed Enforcement (May 2004, pdf file) found that of the thousands of motorists stopped by drug task force officers, about 98% of them received no ticket (p. 11). That’s partly because task force officers, who wear uniforms from their home jurisdiction, are stopping motorists in other counties than the one where they are employed. (A former task force officer says another reason is that motorists who haven’t received a ticket yet are more likely to give consent to search.) This creates two concerns:

1. Confusion among motorists over why they’re being stopped by an officer wearing a uniform from another area.
2. Most importantly, which jurisdiction receives ticket proceeds? Task forces have found that, rather than reconcile this politically sticky issue, it’s simply easier to not give tickets at all. If the money goes to the county where the ticket is given, as with DPS, then agencies are paying officers to generate revenue for other jurisdictions.

To the extent giving out tickets at traffic stops fulfills real-world public policy goals like deterring traffic offenses, task force traffic interdiction isn’t helping. To the extent ticketing generates revenue, local governments are foregoing millions in revenue statewide from traffic enforcement performed by their officers.

Drug task forces not only have officers enforcing laws outside their jurisdiction within the task force area, they frequently trade officers to perform undercover work in other task force regions by agreement. Given their notorious liability issues, this creates potential problems for all involved.

B. Officers can arrest outside jurisdiction for most offenses.

CCP 14.03 contains provisions that appear contradictory at first glance. Subsection (d) allows officers to arrest outside of their jurisdictions for felonies, breaches of the peace, disorderly conduct and drunkenness committed in their presence. That is a reasonable limitation that allows officers to keep the peace but, by itself, restricts routine law enforcement to officers employed in the jurisdiction.

CCP 14.03(g), however, expands that power dramatically, allowing arrests for “any offense” except traffic violations. (Drug task force officers are even exempt from that.) 14.03(g) completely overrides and subsumes 14.03(d), for the worse, allowing officers to arrest for even the most petty misdemeanors, even fine-only offenses, punishments for which don’t even merit incarceration. That’s too broad.

C. Proliferation of Special Force Risks Abuse

Proliferation of various types of small law enforcement agencies risks inexperienced, poorly trained and unaccountable officers acting anywhere and everywhere without restraint. Article 2.12 of the Code of Criminal Procedure lists 32 different types of specialized police officers in addition to municipal police and sheriffs. Many of those officers don’t receive the same level of training or oversight as regular law enforcement agencies, or, e.g. arson investigators, on paper possess narrow jurisdictions and expertise. Thanks to the problem described in "B" above, though, these officers can bring the full force of law to bear on even the most minor offenses, whenever they want. That risks all sort of obviously problematic situations.

Recommendations

1. Most important: Delete CCP 14.03(g). The provision in 14.03(d) provides out of jurisdiction officers all the leeway they need to keep the peace. 14.03(g) removes all restrictions on officers actions, making them as powerful outside their jurisdiction as within it. Officers in their jurisdiction are subject to supervision and oversight; outside their jurisdictions they become potential loose cannons, creating liability with every law enforcement action.
2. Disallow drug task force highway interdiction. Require that officers only enforce traffic laws in their home jurisdiction. See the report, Flawed Enforcement, for a much more detailed criticism of drug task force highway interdiction practices and problems created by task force officers operating outside their home jurisdiction.
3. Strictly regulate the ability of drug task forces and other agencies to bring in out of jurisdiction officers through cooperative agreements. Clarify that the both the requesting agency and the home jurisdiction will be liable for any misconduct by officers working by agreement outside their jurisdiction.
4. Consider implementing restrictions on the law enforcement powers of specialized police forces listed in CCP Art. 2.12

Court of Criminal Appeals supports Innocence Network

I was just about to post on this when his RSS feed reported that Charles Kuffner beat me to it. As I concur entirely with his take (and with his disdain for Harris County DA Chuck Rosenthal), I'll refer the two Grits readers who don't regularly see OfftheKuff to his comments. Go Charles!

Travis Commissioners: Find Alternatives to Jail Expansion

The Austin American Statesman reported Tuesday that the Travis County Commissioners Court wants to issue $100 million in bonds to expand the county jail (registration required) by 1,688 beds to solve overcrowding problems.

"The driving force behind the bond package is the warning from Texas Commission on Jail Standards two years ago that the county needed to find a long-term fix to jail crowding issues," the paper reported.

Travis County's jails have been a disgrace for quite a while, and were named worst in the state by the Texas Commission on Jail Standards just a few years ago. "When I got there, we were in an absolute jailing crisis," said state Rep. Terry Keel, R-Austin, who was elected sheriff in November 1992.

None of that means issuing $100 million in bonds is a good idea. For starters, voters already approved bond money for that purpose -- $67.7 million that should have boosted capacity to 3,600 by 2003.

"But much of that money was diverted to pay for large budget overruns on the new downtown Criminal Justice Center," reported the Statesman three years ago. "Fewer than half of the extra beds materialized."

So what makes anybody think they'll spend the money right this time? County commissioners ignored this problem for too long to focus on their own pet projects. In 2001 the county issued $185 million in bonds for road building, hyping expensive and speculative new roads to the suburbs instead of solving longstanding jail problems. Both the city and the school district have issued more debt since then, too, and voters recently approved a new hospital district, so now Austin-area voters are basically bonded up to the eyeballs.

It's getting awfully expensive to live here.

After sticking voters with a 2001 wish list that didn't include core essentials, now the county wants to issue more debt. Judge Biscoe told the Statesman they could issue bonds to build 572 beds without voter approval because the county had no choice to do the work, but said he wanted the remaining $60-$70 million to be approved by the voters.

Gosh, that's nice of him.

But there are a lot of ways the county, with the help of the city, could resolve the jail overcrowding problem without issuing new debt. Here's just a sampling of ideas:

While Governor Perry twice vetoed versions of the "Soccer Mom" law, which would have forbade officers from arresting anyone for Class C (traffic ticket-level) offenses, the Travis Sheriff and Austin PD could themselves implement that policy to lower jail admissions.

The Republican former chairman of the Texas House Corrections committee, Rep. Pat Haggerty of El Paso, last year proposed a bill that would have limited the amount of time people could be kept on probation for felonies if they had no significant violations. The maximum probation length for misdemeanors in Texas is two years. Only 24 percent of Travis County probationers are on probation for high risk offenses. If Travis County made probation for non-violent misdemeanors end after one year, the number of new jail entries due to probation revocations would decline after 12 months had passed. Travis County probation officers' caseloads are so high, anyway, they can't provide adequate supervision. Bottom line, shorter, tougher probation works better to actually change lives. Probationers who enter the system on technical violations two years after the offense needlessly take up bed space without any benefit to public safety.

The County could also look at limiting probation revocations for "technical violations" of probation conditions, or even stop requiring urinalysis tests as a probation condition in non-drug related cases. While judges could implement this policy of their own accord, the county probation department could alter guidelines and recommendations to facilitate the change.

Some indirect policy changes could have big consequences. The Travis Sheriff and Austin police should ban consent searches, or searches where an officer asks for permission to search but has no probable cause. (Officers already can search if they see probable cause or want to pat someone down for their own protection.) As officers have told me many times, police are only searching for two things: drugs and guns. So, if we don't have any space to put people away for low-level possession, and the officer has no cause to think someone is armed, there's little law enforcement benefit and much wasted time and goodwill from conducting lots of consent searches. Austin PD officers search black people more than five times as often as whites (pdf file), according to the department's 2003 racial profilng report, so the policy would also radically reduce police discrimination. To the extent these searches are leading to incarceration for low-level drug possession or otherwise violating probation conditions, they're increasing the number of people, mostly black and brown people, in the county jail who don't necessarily need to be there.

Another option is to look closely at the wisdom of incarcerating for vice crimes.

Chicago is considering a system of fines instead of incarceration as punishment for low-level marijuana possession to relieve the clogged court system and increase revenues. (The fine, Chicago-based blog decrimwatch was established to monitor this development.) In Texas, that would require a change in state law; such a bill was considered last legislative session and will likely be re-introduced next year. In the meantime, though, Travis sheriff deputies and Austin police could be ordered by policy to write tickets for paraphernalia violations instead of possession misdemeanor possession offenses, and it would have the same net effect.

In Berkeley, CA, next week voters will consider Proposition Q, which according to the ballot language would "1) make enforcement of prostitution laws the lowest priority; 2) oppose state laws making prostitution a crime; and 3) require semi-annual reporting of prostitution-related Berkeley Police Department law enforcement activities." Opponents of the measure say it would increase costs because it would increase crime, but the truth is to the extent prostitution busts are contributing to jail overcrowding, it would lower jail overcrowding costs. Like the good folks at the blog Vice Squad, I'd prefer regulation and zoning to simply lowering the enforcement priority, but that would require changing state law, while something like Proposition Q could be implemented internally as policy without any changes in state or local law.

Having tried none of these approaches, Travis County Commissioners cannot tell voters in good faith that borrowing $100 million is our only option. While the proposed vote won't take place until November 2005, it's never too early to tell the politicians to get smarter on crime before they raise our bond debt and thus our taxes.

MJ busts reach new record despite Texas' underreporting

It's been widely reported in the blogosphere that America set a new record for marijuana arrests in 2003, topping 755,000. NORML calculated that number accounts for 45% of all drug arrests, and that 88% of those were for possession only.

Well, it turns out that in Texas those numbers are dramatically underreported. The Dallas Morning News revealed earlier this month that Texas counties only report 60-69% of serious crimes to the Department of Public Safety database from which federal Uniform Crime Reports are compiled (link is an AP clip). In Dallas County, less than half of crimes made it into the state system.

Texas has the highest incarceration rate among all states, or for that matter in the world, and nationally, one in five new prisoners in the '90s were added in Texas. That means Texas accounted for a significant percentage of national increases in pot busts, too, except now we know the state almost certainly didn't report them all.

Even with Texas' underreporting, marijuana arrests nationwide nearly doubled in the last decade, reported NORML. Here's the breakdown:

YEAR * MARIJUANA ARRESTS

2003 * 755,187
2002 * 697,082
2001 * 723,627
2000 * 734,498
1999 * 704,812
1998 * 682,885
1997 * 695,200
1996 * 641,642
1995 * 588,963
1994 * 499,122
1993 * 380,689

Death penalty case shameful

I'm saddened and horrified that Dominique Green was put to death last night over the objection of the Houston police chief, a federal district judge, Archbishop Desmond Tutu and frankly anybody with a shred of conscience. Unfortunately, the latter category does not include Harris County District Attorney Chuck Rosenthal, the Texas Board of Pardons and Paroles, Texas Governor Rick Perry, or the US Supreme Court. So Green was killed even though evidence from the scandal-ridden Houston crime lab had been called into question.

Yet another reason for Harris County residents to vote for Reginald McKamie next week.