Snitch

Lauri at Tres Chicas tells us "How to be a major drug trafficker and avoid decades in prison." It's easy, really.

Snitch. She writes:

This Austin American-Statesman article pretty much explains what drug policy reformers have argued all along -- that major traffickers routinely avoid decades-long prison sentences by snitching on their friends and associates. In this case, a major trafficker who was facing 21 years knocked his sentence down to 6.5 by ratting out folks to the feds. Often the bottom-tier dealers and mules who do the heavy lifting for these guys don't have any information to give to the feds, which costs them in the long run.

By comparison to that 6.5 years, some of the original, since-overturned sentences in the Tulia cases -- all charges for small quantities -- were for 40 years or more, in one case for more than 300 years. When you're low on the totem pole, or for that matter innocent, odds are you just don't know anybody to give up. In Palestine, TX, a Tulia-style drug task force rounded up 72 people, all black, and accused them of operating a "crack distribution ring" in that rural, 17,000 person town. How did they bust such a massive "ring" in tiny Palestine? After the local drug task force caught a mule delivering weight from Houston, they spent nearly two years rounding up low-level drug users instead of tracking the package back upstream. All but one of those cases are still pending; so far in Palestine, one defendant has pled guilty to delivering 1.23 grams of crack.

In 2001, Governor Perry signed into law a Texas statute that grew out of the debates over the wrongfully incarcerated innocents from drug stings in Tulia and Hearne. That law requires corroboration for testimony of confidential informants in undercover drug stings, but to my knowledge it has no counterpart in federal statutes, or in other states. ACLU, NAACP, LULAC, Tulia Friends of Justice and other advocates had pushed for the corroboration requirement to apply to undercover cops, too, like Tom Coleman, but although that version passed in the Texas House, it could not make it through the more conservative Senate.

In recent testimony to the Texas Senate Criminal Justice Committee, ACLU of Texas proposed requiring corroborating evidence for the testimony of jailhouse snitches as one of several possible reforms to stop the rash of convictions of innocent people.

UPDATE: More on snitching.

Coleman trial already has pro-wrestling feel

This is the first installment in a series by Rev. Alan Bean of Tulia Texas, who will be featured as a guest blogger at Grits for Breakfast throughout the Tom Coleman perjury trial. More.

Tex Read (John H. Read II) is a high-dollar Dallas attorney who shoots from the lip and leaves the thinking to others. Family obligations may keep ol’ Tex from showing up on Monday to square off against special prosecutors Rod Hobson and John Nation. Read’s appearance at a staged media event on Friday could be taken as a sign that he is good to go on Monday morning. Or maybe, knowing that he won’t be around for the big show, Tex decided to grab for the gusto while the grabbing was good.

The argument that Hobson and Nation were improperly sworn in could have been made months ago. The fact that the motion was filed short days before trial shows that Mr. Read and company are grandstanding.

To get a feel for Tom Coleman’s attorney think of a professional wrestler making the most of his thirty seconds of microphone time. Better yet, imagine a youthful James Brown collapsing in the middle of a frantic rendition of "I Got a Woman." The brothers come on stage, wrap a black cape around the fallen singer’s frail shoulders, lift him to his feet and escort him off stage. After a few staggering steps, James Brown gets a shot of the spirit, tosses off the cape, grabs the microphone and rips back into his number as the band falls in behind him.

The James Brown image came to me as I watched Kirk Lechtenberger (the brains of the operation) trying to calm Mr. Read as the balding attorney did his crazy-lawyer act for the media at Coleman’s venue hearing in Tulia. The six-foot-eight Lechtenberger was the voice of reason; Read was Yosemite Sam, the loose cannon.

"You think someone was asleep or something was going on politically?” Read asked the camera yesterday. “You think someone was protecting someone politically in this deal and was afraid to raise too many issues and find out there was some poor police work going on. It had nothing to do with Tom Coleman. It had to do with who trained him. That's why they paid $5.5 million. It had nothing to do with Tom Coleman. They had to point the finger at somebody" (emphasis mine).

If Read and Lechtenberger take this tack when the trial opens next week things could get really interesting. Some claim the trial could go two weeks; others say it won’t last past a couple of days. Everything depends on whether Judge David Gleason allows Coleman’s attorneys to range beyond the fact issues cited in the indictment. It is commonly assumed that Coleman has been charged with faking drug deals in Tulia—not so. He stands accused of lying about events only tangentially related to the Tulia operation.

Coleman left Morton Texas owing local merchants almost $7,000 in unpaid bills and bank loans. Shortly after the Tulia operation began in the early days of 1998, Cochran County officials decided to force Coleman’s hand. The day Coleman left Morton the County Attorney filed a complaint with the Sheriff’s department to the effect that the former deputy had fraudulently filled up his personal vehicle with county gas. The statute of limitations had almost run on the complaint in the spring of 1998 when theft charges were filed against Coleman. On May 30th of that year Coleman signed a waiver of arraignment stating that he was aware that charges had been filed against him.

The issue became significant during the Tulia drug trials because the moment Coleman knew he was under indictment he should have been temporarily suspended pending resolution of the case. This didn’t happen. Defense attorneys argued that any cases made between May 30th and August 11, 1998 should be tossed out because Coleman did not have legal standing as a police officer during that period.

But much more was at stake than the handful of cases Coleman filed during the spring and summer of 1998. If he had failed to inform his superiors that he was under indictment Coleman had broken the law. If Swisher County Sheriff Larry Stewart and Lt. Mike Amos of the Panhandle Regional Narcotics Task Force knew Coleman was under indictment and failed to take him off the job they too were in breach of the law.

The issue came to a head in May of 2000 during the probation revocation hearing of Mandis Barrow in Amarillo. Defense counsel Walt Weaver asked Coleman when he knew about the charges against him in Cochran County. Coleman said he had been informed in May of 1998, the answer he had given weeks earlier in another hearing. The state challenged the relevance of this line of questioning and Weaver was forced to explain himself. A light went on in Coleman’s feeble brain and when the question was repeated the undercover man said he found out about the charges against him for the first time when he was arrested in August of 1998.

But what about that waiver of arraignment Coleman had signed back on May of 1998. Coleman’s backers invented a clever theory: the undercover agent had signed a blank affidavit so that his attorney wouldn’t have to hunt him down for a signature if charges were filed.

This theory began to unravel during evidentiary hearings in March of 2003 when attorney Mitch Zamoff was able to demonstrate that the upper portion of Coleman’s signature clearly covered the text portion of the waiver, something that would have been impossible had Coleman actually signed a blank document.

The three-count indictment against Coleman claims that Coleman lied about signing a blank document, lied about when he first knew charges had been filed in Cochran County and lied when he said the theft charges were baseless.

If Judge David Gleason forces defense counsel to confine their trial strategy to these simple fact issues this trial could be over in a couple of days. But if Read and Lechtenberger are allowed to point the finger at Sheriff Stewart, the Panhandle Task Force and reassert the guilt of Coleman’s victims in Tulia this could prove to be a very long trial.

The smart money says that Gleason will restrict both sides to fact issues related to the indictment and that the trial will be over by the end of next week. That is certainly the dispensation the law enforcement community and the criminal justice system in Texas is devoutly wishing for. We’ll just have to wait and see.

Alan Bean
Tulia, Texas

Saturday Morning Tidbits

As his perjury trial approaches, Tom Coleman showed up in court for the first time Friday to watch his lawyers try to have the special prosecutor in the case removed. His attorney previewed some of his arguments blaming task force supervisors. (Ah, the finger pointing has already started; this could be fun!) Meanwhile, folks in Tulia just want the case to go away, reports one TV station. Rev. Alan Bean of Tulia Friends of Justice will be guest blogging for Grits from Coleman's trial.

The Austin Statesman has an article about the Re-Entry Roundtable's proposals to help ex-prisoners succeed on their own and avoid recidivism.

Texas Attorney General Greg Abbott issued an important opinion clarifying that doctors are not required to report drug use by patients to the authorities.

Dr. Park Dietz, the "expert" who falsely testified in Andrea Yates murder trial that she'd copied the crime from a Law and Order episode, now says Harris County prosecutors fed him the false information.

An audit says nobody really knows how Texas homeland security money is being spent. UPDATE: Sarah has more.

And outside of Texas:

Doug Berman at Sentencing Law and Policy left town but can't stop blogging. He's analyzed the non-torture-related Q&A from the Gonzales hearings. He brings us this post with links to sentencing guideline resources from Minnesota and Indiana. And he offered a fine post on the high costs of capital sentencing, costs borne in Texas largely by Harris County taxpayers, it seems. Finally, he quotes a great newspaper editorial in this post arguing that "Not every tragedy can be prevented by legislation."

And since I haven't relayed a story about problems at drug task forces in a few days, a Georgia sheriff fired 27 employees upoin taking office, and has refused to swear in officers belonging to their drug task force , citing "possible administrative problems and the need for an audit." The sheriff posted snipers on his office rooftop after the firings, fearing retaliation from the former officers.

TIFA Founder Passed Away

Texas Inmate Family Association founder Stuart DeLuca passed away January 5. Stuart was a soft-spoken, highly committed fellow who worked tirelessly to build TIFA, then unselfishly handed over the reins as the group's leadership developed, assuming the role of group treasurer and co-chair of their PAC. He also was board president of Another Way Texas Shares, which facilitates payroll deduction donations for liberal groups. And he was secretary of the Austin unit of the Texas State Association of Parliamentarians.

When Stuart began TIFA, nobody was organizing inmate families in Texas on a significant scale. Today, TIFA has chapers all over the state. He will be missed by everyone in Texas' criminal justice reform movement.

Kill'em all, let Heather sort them out

Even as Alberto Gonzales refused to stand by his past justifications for torture, hopefully portending the shift in terms of debate Grits predicted yesterday, a neoconservative would-be pundit has been doing her best to prop up his decidely improper former positions.

The Manhattan Institute's Heather Mac Donald first made a name for herself defending racial profiling as necessary and proper. Now she's writing treatises in support of torture. Is there a single, despicable police tactic this woman doesn't favor? Abu Ghraib happened. We all saw the pictures, and it wasn't just a few bad apples on the night shift. I wonder why Ms. Mac Donald has taken it upon herself to pick out the most odious, inhuman police behaviors and grace us with extended, ad nauseum justifications for them?

Racial profiling by police and torture at Guantanamo and Abu Ghraib aren't just egregious policies, they're foolish ones. Racial profiling wastes police resources and ignores whole classes of criminals, while subjects enduring torture are likely to make up whatever they think their interrogator wants to hear, just like jailhouse snitches will generally say anything the prosecutor wants in exchange for a lighter sentence. The tactics aren't just taboo, they're counterproductive. It almost makes you think she wants law enforcement to waste their time and resources chasing shadows.

Preview: Guest blogger for Tom Coleman perjury trial

Members of Tulia Friends of Justice, via the Texas Observer

Grits is excited to announce a guest blogger posting from the Texas Panhandle next week to provide first hand accounts from Tom Coleman's perjury trial. (Coleman is the undercover drug task force officer on whose uncorroborated word 46 38 mostly black defendants in Tulia, Texas were convicted of drug trafficking. After a judge found Coleman non-credible, charges were dropped and the defendants were pardoned.)

Rev. Alan Bean of Tulia Friends of Justice has agreed to send updates from the proceedings, which begin in Lubbock federal court on Monday. Grits will probably post them at the end of each day or the following morning, since live blogging from the courtroom hasn't been worked out. But few correspondents have more indepth background on the story; Alan knows Coleman's tale backwards and forwards. Plus he's a fine writer, and is currently working on a much-anticipated book about the Tulia fiasco.

The Texas Observer once rightly declared, "few have felt the backlash in Tulia more than Alan Bean." He, his wife, and a few other Tulians banded together with family members of the wrongfully incarcerated. From the time of the trials in 1999 until the defendants' release from prison four years later, Alan and Friends of Justice agitated for their release and for reform in the criminal justice system. Alan and quite a few other Tulians came to Austin in 2001 and 2003 to lobby for successful reform legislation, and to encourage the Texas Legislature to abolish the state's drug task forces, a recommendation echoed in the Texas House Criminal Jurisprudence Committee Interim Report released last month.

Last year, the drug task force that targeted the Tulia defendants was abolished as part of a $6 million settlement with Coleman's victims.

Thanks, Alan, for agreeing to help out on this. Grits is honored to have you.

When is an electronic scan not a search?

In school, apparently, says Dallas ISD.

Big Brother police tactics are expensive, intrusive, and from a cost-benefit perspective, offer little comparative gain to traditional investigative techniques. This morning's email affords a prime example. DRC Net reports that Dallas ISD has started to use,

Trace scanners, [which are] devices which pick up microscopic traces of substances, are typically found in airports, where they search for explosives, and in prisons, where they are used to detect traces of illegal drugs on visitors (who are then banned from visiting), but they have also found a home in the Dallas Independent School District, which has become the nation's first to use them to find drugs and drug users in its classrooms and hallways.

Come on, don't these priggish bureaucrats have anything better to do? Predictably, DISD "didn't come up with much for its efforts, conceded district police force head Scott Lindsay. Before the sweep, officials suspected the school was awash in cocaine, he told the Morning News, but the scans turned up mostly marijuana, and on only five percent of the students." I wonder what they did to those 5%?

Here's the really bogus part: "School officials and Trace Detection alike portrayed the program as less of a law enforcement tool and more of a way to improve drug prevention and education. As Trace president Gary Pfeltz noted, 'Under the law, schools need only reasonable suspicion to search a student, and this one way they can do it,' he said. 'But we found there is more interest in this for education. That also happens to be where the federal funds are.' "

That jerk is saying that using an electronic device to check for microscopic particles of drugs doesn't constitute a "search," but just a method of garnering "reasonable suspicion." What a crock. If that's the crackpot theory DISD is operating under, they may be in for a big surprise the first time they try to prosecute somebody based on this junk. Then again, the US Supreme Court may soon decide that using a dog to sniff for pot isn't a search, so maybe I'm being naive and the Fourth Amendment has already been tossed out the window.

Did I miss a memo?

Stakeouts, IDs for drunks = slippery slopes

Coming soon, to a parked car in the shadows up the street from your house, the DUI Blog informs us of perhaps the most ridiculously wasteful use of police manpower of which I've ever heard: Stakeouts of individual drunks -- like, outside their homes on weekend nights. The President recommended it (or rather his national commission on drunk driving did), and now states are beginning to take him up on it.

Forget the civil liberties aspects (which are legion); that's just wasteful and dumb.

The examples of this tactic in use are from California, but I don't get it. Unless police are just looking for the most Big Brotherish strategies they can find, this seems like a poor option. I was under the impression that California required breathalyzer "ignition interlocks" on the steering wheel after DUIs so drunks have to blow clean to drive. Apparently that method only works some of the time, but when I heard it described by experts in legislative hearings in 2001 and 2003, I thought that was a brilliant solution that should pretty much take care of the problem for probationers while the technology is in place.

Instead, though, there seems to be a growing fascination with Big-Brother-style solutions. This article calls for making drivers licenses swipable and requiring a valid license be swiped inside the car before it could turn on. That way, drunks whose licenses are suspended could not start their vehicle. Egregiously, Oak Ridge National Labs sees this as a wedge issue through which to promote the idea of a national ID card:

"American society historically resists excessive government intervention and Big Brother programs that threaten to invade privacy," [ORNL's Pat] Hu says. "One of the biggest challenges to implementing electronic driver’s licenses will be to secure widespread public acceptance and community support." Hu thinks that the U.S. public will be more likely to accept this technology if it is first demonstrated on high-risk drivers. "Targeting a demonstration project at drivers who might have fewer privacy 'rights,' such as convicted DUI offenders, might reduce public concern about invasion of privacy," she says.

That's pretty sneaky; basically they're hoping to construct the slippery slope ahead of time, starting with "drivers who might have fewer privacy 'rights'" -- notice they place "rights" in quotes.

First they came for the drunks, but I wasn't a drunk so I did not speak up.

Ignition interlocks for probationers, financing mandatory treatment, and other targeted methods are available to stem drunk driving without restricting the rights of non-offenders, and with a manpower ratio somewhat less than one-cop-per-drunk. That is, if lessening drunk driving is really the goal.

Red light cameras cause rear-end accidents

The New York Times ran an article on the hot-button topic of red light cameras today, as the Texas Legislature gears up to address the issue in its 79th session. Here's some interesting highlights:

Cameras ... are now in use [at red lights] in more than 100 American cities. Activated by road sensors when a car enters an intersection belatedly, the systems provide evidence of a violation, including photos of the license plate and in some cases, the driver.

While Baltimore reports that violations for running red lights have gone down 60 percent at the 47 intersections with such cameras, several studies in recent years - in places like San Diego, Charlotte, N.C., and Australia - have offered a fuzzier picture. The studies have shown that the reduction in side-angle collisions at the intersections has been wholly or largely offset by an increase in rear-end accidents like Ms. Correa's.

In addition, there has been criticism of the cameras' use to generate revenue from fines - in some cases exceeding $300 per violation, with points on a driver's record - and of revenue-sharing arrangements with providers of the technology. Those arrangements, critics contend, have led to the placement of cameras not necessarily where they would best promote safety, but where they will rack up the most violations. Those questions, along with malfunctions and legal challenges, have led some local governments to remove the cameras. ...

Studies elsewhere ... made a striking finding: rear-end accidents have shot up at intersections with cameras. In 2002 a consultant's study in San Diego reported that the number of crashes at camera intersections had increased by 3 percent after the cameras were installed, almost all of it a result of a 37 percent increase in rear-endings. "This finding is not consistent with the program's overall objective of improving traffic safety," the report's authors concluded.

Other reserachers thought the rear end crashes were safer than crashes in the intersection because the cars were moving slower, but at best these statistics are muddy. They certainly don't confirm claims of grandiose improvements in traffic safety made in Houston.

MORE: A city councilwoman in Chapel Hill, North Carolina, whose council colleague is quoted in the Times article, has an interesting blog post on why she opposed red light cameras in her town here. Grits reported here on Texas state Rep. Gary Elkins bill to eliminate red light cameras in Texas, and discussed potential abuses of such cameras in this post. UPDATE: The Houston blog By the Bayou looks at the Times article and offers an opposing view here.

Thousands of private webcams online

Grits passed on the word yesterday that hundreds of webcams were available for public access online. Now, Security Focus lets us know that, indeed, the number ranges into the thousands.

You weren't using your privacy, anyway, were you?

Shameless self promotion

Charles Kuffner at Off the Kuff was kind enough to nominate Grits for Breakfast as "Best Single Issue" blog in Wampum's Best-of-the-Left "Koufax Awards," the single issue being the "Texas Justice System."

If you happen to agree with him, you can go here to cast your vote for Grits in the comments section. I'm flattered Charles would think to nominate me, and appreciate greatly any reader support. To my DPS and law enforcement readers, you can vote, too! You don't have to vote for me, though. Check out the other single issue blogs while you're there. It's a really cool, eclectic list.

UPDATE: I didn't notice until he mentioned it that Off the Kuff was nominated in the same category, along with two other Texas blogs, the Burnt Orange Report and the Daily DeLay -- all highly worthy nominees. Buena suerte, amigos!

Tom Coleman Perjury Trial Nears

Judge Ron Chapman: "Tom Coleman is
simply not a credible witness under oath."

BBC News photo

They started jury selection for Tom Coleman's perjury trial in a Lubbock federal court on Tuesday. The trial itself is scheduled to start Monday.

Coleman was the undercover officer in the infamous Tulia drug stings, upon whose uncorroborated word 16% of the black population in that small West Texas town was incarcerated. All the defendants were pardoned by the Governor after Judge Ron Chapman halted testimony and declared that "Tom Coleman is simply not a credible witness under oath."

It's gonna be a big deal. Seventeen state and national media outlets have requested credentials from the court so far.

See also:
"Gypsy Cop" in Wikipedia,
Byrne task forces not just a Texas problem,
Byrne grant pays to prosecute Tom Coleman,
Local Officials Miss Boat on Byrne Funding,
Jury: DPS Promoted Cronies To Oversee Drug Task Forces,
TX House Committee: End Drug Task Force System!

Appellate court: State psychiatrist gave false testimony

The Texas 1st Court of Appeals said the judge in Andrea Yates' murder case should have declared a mistrial after it was discovered the state's expert psychiatric witness gave false testimony on the stand. Dr. Park Dietz, put forward as an expert by the Harris County District Attorney's office, claimed Yates patterned her actions after a Law and Order episode that, it turned out, never existed.

TalkLeft has the story and the court opinion. The Houston Chronicle's coverage is here. See a recent Grits post on the insanity defense here. The Senate Jurisprudence committee examined Texas' insanity defense last year as one of its "interim charges," and a discussion of the subject was included in that committee's recent Interim report (pdf).

At a Senate Criminal Justice Committee hearing I attended in Houston on Tuesday, Harris County District Attorney Chuck Rosenthal testified in favor of enhancing penalties for aggravated perjury in response to discoveries of past false convictions. I'll bet he doesn't file such charges against Dr. Dietz.

UPDATE: The South Texas Law Professer and Off the Kuff have more.

Gonzales lurches leftward

This news from the Houston Chronicle shows why it was strategically wise for activists like MoveOn.org not to give US Attorney General nominee Alberto Gonzales a free pass during his confirmation hearings in the Senate Judiciary Committee, even though his ascent to Attorney General appears certain. The Chronicle reports that Gonzales will distance himself from his pro-torture legal opinions today in his opening remarks to the committee. Instead he will call for "preserving civil rights and civil liberties" as we fight the war on terror "consistent with our nation's values and applicable law, including our treaty obligations."

According to the Chron, "in remarks he'll give during testimony, [Gonzales] makes the point that as Bush's lawyer he was asked to giving legal opinions based on his reading of existing law. That role will change as attorney general, he said: 'I would have a far broader responsibility, to pursue justice for all the people of our great nation, to see that laws are enforced in a fair and impartial manner for all Americans.'"

That means Gonzales' critics have successfully chased him off of some of the most regressive and scary legal and political positions ever taken by the Bush administration. Hurrah! It's an accomplishment well worth the price paid for standing up to reactionaries and race baiters who said he was above criticism.

That's a good thing for a lot of reasons, because some of Gonzales' battier positions were downright dangerous. John Brittain, formerly dean of the Texas Southern University law school, sent me the following comments in an email recently, reprinted here with his permission:

I still remember meeting the Mexican ambassador at the Consular Office in Houston around 2000. He proudly displayed his contempt for Gonzales as Counsel to Governor George W. Bush by showing me a framed letter from Gonzales that hung prominently on his wall. The Gonzales letter written on State Governor's office stationary to the Mexican ambassador stated the Consular Advise Treaty, ratified by the US, did not apply to Texas because the state had not signed it. Of course it's hornbook law that treaties ratified by the US Congress become a part of the domestic US law and are enforceable throughout the nation. I will try to find that letter and send it to the Senate Judiciary Committee. If such an answer by Gonzales would result in a zero on a law school examination for that legal doctrine, he should be unqualified to become USAG

Well, apparently it DOESN'T disqualify him to be A.G. But if Gonzales delivers the opening address the Chronicle predicts, then it looks to me like the terms of debate will have shifted. In the future, such justifications for torture, abuse and ignoring international treaties can be discredited as they're rolled out -- President Bush's own A.G. will have disavowed them as being outside the acceptable terms of debate, even on the right. That's worth something.

In times this grave, one celebrates even small victories.

MoveOn.org New York Times ad

ACLU defends religious conservatives

Even though my consulting work with ACLU of Texas concerns only criminal justice issues, near constantly we contend with some religious conservative who won't listen to fact-based arguments about the justice system because they believe ACLUers are a bunch of atheistic, ten-commandments hating, abortion loving nutballs who don't have anything better to do than sue the Boy Scouts for excluding gays.

Over the years, I've come to find that attitude ironic for a number of reasons. For starters, ACLU of Texas works closely with a lot of religious folks on criminal justice issues, so my own day-to-day experience simply betrays the charge. After 9-11, even former religious critics banded together with ACLU to oppose the PATRIOT Act and homeland security-related abuses. That happened in Texas, too, as evidenced by conservative opposition to collecting biometric data on Texas drivers licenses in 2003. More to the point, once you're aware of the details of ACLU's actual litigation docket, it's clear the group's role is to protect religious freedom for everybody, including Christians.

On the latter subject, the South Texas Law Professor recommends an overly vitriolic but informative post that details numerous cases where ACLU represented religious people, churches and conservative groups, including an interesting case where ACLU is defending a Catholic forced to go into a drug treatment center espousing Protestant doctrine. The overarching theme is protecting their First Amendment guarantees of religious freedom. (He also has this interesting post about a current Texas Supreme Court case with First Amendment religious liberty implications.)

The ACLU is a sprawling, diverse organization with hundreds of thousands of members nationally, and 50 state affiliates each selecting independently what litigation they'll take. You can nitpick about the wisdom of accepting this or that particular case, but taken as a whole, the anti-religion charge doesn't really stand.

CrimLaw adds detail on predictive sentencing

Ken Lammers, Jr. at the CrimLaw blog is a criminal defense attorney in Virginia, so he had special insight into the New York Times article on predictive sentencing in that state that Grits blogged about last week. On their face, the Virginia sentencing guidelines recommend harsher punishments based on immutable facts like age, gender and employment status. Lammers, though, says those probably unconstitutional provisions aren't really being enforced:

"When this sheet was added to the sentencing guidelines I think every defense attorney I know had the same reaction as the NYTimes: that section is clearly unconstitutional. And we told the judges as much. I can clearly remember standing in front of a judge and illustrating this issue by pointing out that I would start out with 22 points and 31 if court appointed work didn't count as regular employment. Although I never got a one to say it out loud, the judges, through their actions, seemed to agree. I've even had a few prosecutors admit to me that they believe it unconstitutional (off the record).

"The net effect has been that this sheet has become the most ignored section of the sentencing guidelines (remember Virginia's guidelines are recommendations and can be ignored). I rarely hear competent prosecutors give it more than a pro forma mention and judges do not claim it as the basis for their decisions. The argument has once again devolved to where it should be: the merits and failings of the individual in front of the judge. I've had a number of clients who do not qualify under this section receive alternative sentences and I've had clients who easily qualify be denied. I cannot claim this is the way it is around the entire Commonwealth but it is my experience in the jurisdictions wherein I practice."

That makes a lot of sense. It was hard to understand how such provisions had avoided constitutional challenge. Lammers gives much more detail, including examples of the sentencing recommendation sheets used in his jurisdiction. His post really adds a lot of value to the New York Times coverage, and (belatedly) earns CrimLaw a place on the blogroll. I appreciate Ken letting me know about it.

Why you should worry about proliferating surveillance cameras

John Battelle's Searchblog let's us know that it's possible using Google to identify and view all non-secure web cams. In some cases you can actually control them (e.g.) from your computer. Battelle describes the results as:

a bunch of presumably private network cameras, which anyone with a browser can query for video images. Comments in the original post show all manner of things found live, via the web, from rodents to security guards. I imagine this is a hole that will soon be closed, one way or the other.

Well, the Google hole may soon be closed, but henceforth the list of URLs is basically public after this outing. Anyone from the feds to criminals to terrorists can gather up the hundreds of links and continue to monitor them long after Google pulls the plug on the search vehicle.

Here's the post he's discussing.

The discovery reinforces Grits' concerns about Texas' and the United States' deregulated approach to camera surveillance. No state or federal standards exist to dictate when and where people can be tracked on surveillance cameras, who can view security video, for what reasons, or what government or private entities can do with the footage. In 2003, state Senator Jeff Wentworth, R-San Antonio amended Texas statutes to make all government decisions on those topics secret.

In Dallas, Grits noted recently, police are transmitting webcam information over the internet to private businesses, though one would hope their system is secure enough not to show up on this list.

Judge's death means shift in appellate court power

Byron at Burt Orange Report brings the unhappy news of Justice Mack Kidd's death, and some fond remembrances from Travis County Democratic Party Chair Chris Elliot. I only met him a couple of times, but Kidd was highly regarded by folks I respect. Among other claims to fame, he was himself a former Travis County Democratic Party chair, and name partner of Kidd, Whitehurst, Harkness and Watson (that's former Austin mayor and failed Texas Attorney General candidate Kirk Watson).

Kidd sat on Texas' 3rd Court of Appeals based in Austin, which was split 3-3 Democrat-Republican before his passing. Byron notes the political implications: Governor Rick Perry will appoint a Republican, swinging the court to a 4-2 pro-Republican split. The last Perry appointee to that court, Bob Pemberton, narrowly squeaked past Democrat Diane Henson in the November 2004 election. (More and more, 2006 is shaping up as an important year for Texas judicial elections.)

My condolences to Justice Kidd's family and loved ones.

Brandon Moon: Give Prisoners Open Records Access

Left to Right: Brandon Moon,
Barry Scheck, and George Rodriguez

More from this hearing: ACLUTX Crime Lab Testimony.

Two innocent men yesterday, each wrongfully incarcerated for 17 years in different cases by the State of Texas, testified to the Texas Senate Criminal Justice Committee that the system wouldn't hear their pleas for help.

Brandon Moon and George Rodriguez were both freed based on appellate work by the Innocence Project, led by the estimable Barry Scheck of Yeshiva University, Cardozo Law School. Both men were released after re-tests of DNA samples excluded them as suspects; those re-tests were made possible by a new law authored by state Sen. Rodney Ellis in 2003.

These stories from the MSM tell pretty accurately what was said at this hearing about crime lab issues, including Sen. Tommy Williams comment that he'd been in washaterias that were cleaner than the Houston crime lab. Grits published ACLU's written testimony to the committee earlier today.

I wanted to mention, instead, two things Brandon Moon said that none of those outlets emphasized.

First, Sen. John Whitmire asked Moon if he knew of any other Texas prisoners who he thought had credible innocence claims. Moon said he knew of at least two. One inmate from Harris County, he said, he knew only in prison as "Bubba." When Moon left prison, he took Bubba's personal information and gave it to Barry Scheck, he said. The other possibly innocent inmate Moon personally knew is named Timothy Jackson, who Moon recalled was from the Dallas-Fort Worth area.

None of the media accounts so far mentioned these potentially innocent men.

Moon's second notable comment also came in response to a question from Chairman Whitmire. The senator asked Moon what barriers the state had erected to innocent prisoners pursuing justice, and without blinking Moon replied that two, fundamental barriers had thwarted his efforts. First, Texas prisoners have no right to receive information about their case, or anything else, under the Texas public information act, so Moon couldn't get access to the information he needed to combat the prosecution's claims.

The argument for disallowing inmate open records requests has always been that they would be endlessly filing them, having little but time on their hands, and that their requests would tie up government agencies. I've always thought that was bogus. Requestors must pay for copies they receive, so there's a real limit to how many requests most inmates are able to make. Plus, reading government records is a really boring hobby (trust me on this), and few inmates will ever request reams of government data just for fun. The real result of the law, Moon's example shows, is to keep inmates blind and unable to examine even information that could clear them.

Second, inmate writ writers just aren't taken seriously in the courts, he said, and Moon couldn't get hearings on most of his motions before Sen. Ellis' new law allowed the new DNA testing. The New York Times quoted Moon on this point (if a bit out of context): "I had no method of enforcing procedures," he said. "I could file all the motions I wanted, but I couldn't get heard."

Would more prisoners be able to prove their innocence if they had access to the public information act and if courts more seriously considered writ writers' pleas? Brandon Moon thinks so.

UPDATE: The El Paso Times reported Moon's open records statements.

Homeless drug task force looks for handouts

While I spent all day yesterday in a long Texas Senate hearing in Houston, Lauri at Tres Chicas was pinch hitting for Grits, providing the blogosphere with the latest drug task force coverage. That's veeeery cool, thank you!

She points to this article in The Highlander, which reports that the town of Marble Falls has pulled out as lead agency of the 33rd Judicial District Narcotics Enforcement Team (NET). For non-Texans, Marble Falls is a small town upstream from Austin on the Colorado River in the Texas Hill Country.

The Highlander reports that District Attorney Sam Oatman led an "entourage" to the Llano County Commissioners Court Dec. 28 to plead with them to take over the task force. He told them that the era of "free lance undercover agents," like in Tulia, is over thanks to new DPS oversight. (Apparently he didn't read the Texas House Criminal Jurisprudence Committee report that concluded, "The authority of DPS to monitor and enforce [its] policies is questionable.")

Even so, it doesn't sound like the Llano County Sheriff, who must sign off on such an agreement, will be biting: "You know how I feel about it," [said] Llano County Sheriff Nathan Garrett who complained that for several months he had gotten no support from the team. "I think we ought to take the $14,000 that we've got and hire an officer to do the work ourselves."

DPS lieutenant Jose Portillo used scare tactics to push the idea, insensibly arguing that the region was overrun with drug crime: "If we follow statistics, eight to 10 percent of the population is involved with drugs," said Portillo. That's seven or eight thousand people in these four counties." We're talking, by the way, about a mostly rural area. Those stats imply that Lt. Portillo sees the task force's role as prosecuting low-level drug users, not criminal organizations. That's the kind of bad strategy that got them in trouble in Tulia, and that has prompted charges of racial profiling in Palestine.

Tres Chicas notes, "In the past year the Panhandle Task Force, plus task forces in Laredo, Lubbock, San Antonio, Denton, and other Texas cities have either split apart or lost their primary big-city sponsorship. One of the main reasons for this trend is that cities are scared that, in the event of a Tulia taking place in their local task force's jurisdiction, they'll have to shell out cash to compensate victims. Task forces have also become expensive operations in terms of insurance coverage, due to the potential for scandal and other problems."

ACLU of Texas crime lab testimony in Houston

Yesterday I went to Houston to testify at a Texas Senate Criminal Justice Committee hearing on the subject of the state's forensic science/crime lab crisis on behalf of the ACLU of Texas. (See the Houston Chronicle coverage here.)

I gave the commitee a one-pager on the topic along with oral testimony, and I append that text in its entirety below for any who are interested. (Regular Grits readers have seen some of these arguments before. For more on Texas' crime lab crisis see this House Research Organization policy brief. [pdf])

ACLU of Texas testimony to the Senate Criminal Justice Committee
Houston Community College Conference Center, January 4, 2005
By Scott Henson, Director, Police Accountability Project

Framed innocents in Tulia and Hearne and false convictions based on bad forensic analysis have created a crisis of confidence in Texas’ criminal justice system. Please consider the following as you move to fix it:

Set reasonable expectations:

Don’t view the issue as atomic – crime lab lapses are a microcosm within a system geared toward maximizing the ease with which convictions can be obtained. Innocent people aren’t convicted because one lab technician makes an error. Innocents are convicted when the actors in the system don’t care that innocents are convicted. This committee should examine all the reasons innocent people are convicted, including but not just limited to the role of forensics.

Don’t neglect other important innocence reforms:

The crime lab crisis is important, but as you fix it, make sure you fix other parts of the system that have contributed to the conviction of innocents.

• Require corroboration of “snitch” evidence, just like confidential informants in undercover drug cases.
• Require prosecutors to disclose discussions with “snitch” witnesses concerning the benefits the witness may receive in exchange for his testimony or cooperation and require that these discussions be reduced to writing.
• Require that exculpatory evidence be disclosed in a timely fashion to the defense, and require that witnesses be entitled to view written witness statements against them.
• Eliminate inconsistent theories of prosecution in multiple defendant cases.

Utilize the adversarial system:

Don’t expect too much from the proposed reform of creating a regional system of crime labs. DPS already operates a regional system, and crime labs in Lubbock and McAllen have had problems, too. What’s most needed to ensure the system’s integrity is independent verification.

The state should spend more money for indigent defendants to pay for lab costs and scientific investigations to refute shoddy state crime lab work. In other words, give the adversarial system enough resources to flesh out the truth. No one has a greater interest in ensuring that crime lab results are correct than defendants, so the most certain way to validate crime lab results is to let their attorneys hire experts to conduct independent analysis.

Texas should also expand defendants' discovery access to information about crime lab tests, allowing defendants to obtain labs' error rates and making the information admissible during trial.

Fund changes with Byrne grant money:

Federal “Byrne grants” are block grant funds distributed by the governor for state and local criminal justice needs. Byrne grant money could allow Harris County to pay for its lagging, underfunded drug courts, upgrade forensics labs, and maybe down the line help finance the launch of a public defender's office.

Currently, though, $3.5 million in Byrne money comes to Harris County to pay for the Harris County Organized Crime and Narcotics Task Force, which is run by the Baytown Police Department.

In the case of the “Tulia” drug sting, misconduct by that task force cost Amarillo taxpayers alone $5 million. Harris County today risks a similar outcome. The Harris County Sheriff pulled all its troops off the task force last year, but Harris taxpayers are still liable because the county signed on to the task force operating agreement. Baytown PD has had numerous recent police brutality incidents – including the beating death of Louis Torres and several Taser incidents criticized by Amnesty International – plus the task force itself this summer made national headlines after a failed raid instigated by officers who mistook a hibiscus plant for marijuana. That type of behavior creates huge liability risks, which would be ameliorated by shifting Byrne grant funds to pay for other priorities like crime labs.

The House Criminal Jurisprudence Committee recommended abolishing all Texas’ drug task forces in its recent Interim Report. If that recommendation is accepted, the Byrne grant money freed up could pay for needed improvements in Texas’ forensic labs.

Dancing with alligators

I'll be here today and probably not blogging again until Wednesday, but a reader sent this note that left me with a big grin, so I thought I'd share it:

Being from Texas, I have followed your blog with interest, but I do not admire the scope of your project: Reforming the criminal justice system in Texas is like trying to teach an alligator to dance.

I thought of your blog over the xmas break. I was down visiting my parents, who live now just over the border in Louisiana, and every morning for breakfast, sure enough, grits.

I especially like the traditional usage of the word "admire." I'll bet a warm bowl of grits tasted good on those chilly holiday mornings on the Louisiana border. Yum, yum.

Dead kids walking

Thanks to Sentencing Law and Policy for pointing to this New York Times article about inmates on death row who committed their offenses as juveniles, and who are now waiting to see if the U.S. Supreme Court will spare their lives. It features the case of a youth from Baytown, TX, Robert Acuna, one of 72 juvenile offenders on death row nationwide. Talk Left has more.

Bloggers' expertise trumps journalists'

Thomas Kemp thinks that Howard Bashman's scoop of the Houston Chronicle on the Tyrone Williams case demonstrates the "true power of blogs." (Kemp's permalink seems to be off, but it's at the top of his blog here.) "The media's retort that blogs cannot provide the kind of reliable information that people buy papers for is not holding up," he observes.

Denton traffic supervisor stops 86% Hispanics

Kevin Krause covers criminal justice issues in Denton County for the Dallas Morning News, and when you see his byline on a story of any substance, it's almost almost always worth reading. On New Years Eve, the News published his fine piece independently analyzing racial profiling data from the Denton County traffic unit. Here's the money quote: "The lieutenant over Denton County's traffic enforcement unit wrote 86 percent of his tickets to people with Hispanic surnames during the last two years, an analysis by The Dallas Morning News has found." Overall, about half the unit's tickets went to Hispanic drivers.

Only six people work in the traffic unit, which until recently was run out of a constable's office but which now will be run from incoming Denton County Sheriff Benny Parkey's shop. Currently, various departments are working traffic enforcement in overlapping jurisdictions. Another constable told Krause, "A lot of police departments are working traffic in our precinct anyway," he said. "This [traffic unit] is a revenue-making thing."

Part of the problem appears to be that the traffic unit is targeting Mexican truckers, either suspecting them of drug trafficking, out of racial profiling, or for some other reason. Reports Krause:

Mario Salas of Mario's Cleanup in Fort Worth said his trucks haul construction waste to Lewisville's landfill. He said he often sees officers waiting near the landfill.

"Almost every day I have to go over there. Most of the time he's got Spanish people on the side of the road," Mr. Salas said.

Virginio Rios' company hauls Sheetrock to the landfill from Plano twice a day. He said that when officers see a Hispanic driver, they figure he doesn't have a license. Mr. Rios said he doesn't know whether officers are targeting Hispanic drivers, but they are determined to issue a ticket. He paid about $1,700 in fines from tickets to his drivers about three weeks ago.

"When ... [the traffic unit] stop you, they are going to give you a ticket," he said. "They look hard enough for something until they find something."

Krause's work shows the value of examining officer-specific racial profiling data. Supervisors can use that data to identify officers who stop or search minorities more often, then check to make sure there's a justifiable reason when they identify an "outlier" like this unit commander. They should do so, before enterprising reporters like Krause start to do it for them.

The point isn't to accuse any specific officer of racism. For example, if the lieutenant's assigned job was to target a particular type of trucking service, and, as Krause reports, many companies who own the trucks employ only Latino drivers, then perhaps one could envision a justification for those numbers. One might still reasonably question the resource allocation decision of targeting just those trucks, but that's a policy decision; the numbers don't of themselves imply racism by the officer. They're just a first clue at identifying the sources of observed macro-disparities -- a measuring tool to figure out what's going on.

I've crunched racial profiling data from raw ticket numbers (pdf) before, by the way, and it's no fun, so Krause deserves a lot of credit for going the extra mile to do this story. For more information, see the 2003 statewide report (pdf) by Steward and Associates comparing racial profiling data from more than 400 Texas law enfocement agencies.

Facing up to mistakes

Thanks to the Texas Law blog for pointing to this piece in the San Antonio Express News about the next man scheduled to die in Texas' execution chamber. Convicted killer James Porter waived his appeals, declaring, "I'm the type of individual to face up to my responsibility and my mistakes."

I wonder what he'll order for his last meal?

Two disturbing developments

For a while now the missus has subscribed to About.com's civil liberties newsletter edited by Andrew Somers, and she forwards me two interesting items from it today.

First, a report on an unfortunate, recent U.S. Supreme Court decision, Haugen v. Brousseau. Have you heard the phrase, "Ignorance of the law is no excuse"? Well, the Supremes have added the addendum, "unless you are a police officer." I started to blog on this when the decision came out and didn't get to it, but as I understand the summary reversal (pdf), now, individuals can't recover damages even when an officer's actions were unconstitutional, because the officer might not know his or her actions were unconstitutional. What a crock.

The Volokh Conspiracy sympathetically summarizes the case here, while Overlawyered finds the overturned ruling "criminal friendly," and the 9th Circuit "zany" for making it. My question, then: What level of training on use of force must an officer have before he or she may be held liable for shooting an unarmed suspect in the back? The Supremes' majority certainly did not deign to tell us. The implied answer is "never."

The second piece links to items related to the debate over a national ID card, and the extent to which the new Intelligence bill moves us in that direction. See Grits discussion of the new Intelligence bill in light of Texas-specific initiatives here.

You can subscribe to About.com's civil liberties newsletter here; just scroll down and look in the left hand column.

Lowering pot penalties makes sense

Says the Houston Chronicle editorial board. The AP covered the subject last week.

Houston Chron: Read your blogs

The Houston Chronicle reports today that the trial of Jamaican immigrant Tyrone Williams, a "coyote" who is blamed for the death of 19 illegal immigrants he smuggled into the country, will begin this week.

They'd know better if they were tuned into the blogosphere.

Howard Bashman at How Appealing reported Saturday that the Fifth Circuit issued a stay, delaying the trial until they decide whether the US Attorney can conceal the role of the defendant's race in their decision to seek the death penalty. Grits included the information in an update to this item yesterday. Bashman quoted straight from the order entered on the 5th Circuit's docket:

COURT Order filed granting the appellant's motion for stay of trial and all pretrial proceedings pending the timely filing and final disposition of the United States' petition for writ of mandamus. IT IS FURTHER ORDERED that the United States shall file its petition for mandamus no later than the close of business on 1/4/05, and defendant shall respond no later than the close of business on 1/11/05 [5040182-1]. (EHJ/RHB/ECP) Copies to all counsel. [04-21030] (mcs)

So there will be no trial this week; the defendant's brief isn't due until the close of business day on January 11, and the 5th Circuit will then need time to review. Bashman also filled us in on which judges issued the ruling: "The initials shown on the docket entry quoted above indicate that the three Fifth Circuit judges who entered the stay were Circuit Judges Edith H. Jones, Rhesa H. Barksdale, and Edward Charles Prado," he reported.

I felt a bit sloppy yesterday when I wrote on the topic and initially missed HA's item on the Fifth Circuit stay. I caught it pretty quick, though, within an hour of my initial post. The Chronicle made the same mistake in a piece web-posted almost 24 hours later. Don't you guys Google your news subjects over there? As I said then, from now on I'm checking with Howard first on subjects within his bailiwick. The Houston Chronicle's court watchers would be well advised to do the same.

And to How Appealing: Good scoop.

UPDATE: Charles Kuffner today announces regarding a different Houston Chronicle article, "I really feel annoyed when it seems clear to me that a few minutes with Google could have produced a better story." I guess that answers the question about whether the Chronicle Googles their news subjects. (BTW, this search engine shows that even Googling won't catch some things). Don't fret, Charles. At least that leaves Houstonians with fertile blogging prospects.

Incarceration maximus: A "losing, expensive proposition"

Ann points to an Austin Statesman editorial predicting Texas' prison system will get more attention in 2005, and calling for incarcerating fewer nonviolent offenders.

"At issue are the thousands of prisoners incarcerated for nonviolent crimes, such as parole violations, drug offenses and the like. Even the strongest law-and-order legislators are learning that imprisoning people with substance abuse problems, giving them no help in prison and turning them loose in the communities they came from is a losing, and expensive, proposition."

The Statesman called for expanding the use of probation and restoring state funds for drug treatment services. That would help, but it won't resolve the demand for 7,000 new prison beds projected to be needed over the next two years. Additional aspects of and possible solutions to Texas' prison overcrowding conundrum were discussed in previous Grits coverage here, here, here, here, here, here, and here.

Dallas has a new sheriff in town

Lupe Valdez was sworn in Friday as the new Dallas County sheriff. She's the first Latina, the first openly gay person, and the first Democrat in a long damn time to hold that countywide office.

The Dallas News yesterday had a good profile of Valdez, while on the op ed page of that paper she shared her New Year's resolutions. UPDATE: The Dallas Voice also profiled Valdez this week, and the Dallas News elsewhere named Valdez number 6 on their top ten Texans of the year, a list probably aptly headed by presidential political adviser Karl Rove.

Vertebrate Judge Stands Up to John Ashcroft in Houston

The best way to avoid having the U.S. Supreme Court smack down Texas death penalty cases is for trial judges to enforce fairness at the beginning of the process, and for defense attorneys to do their job.

During the sentencing phase of the federal prosecution for 19 immigrant deaths -- they died horribly in May of exposure, abandoned in an 18-wheeler in the Texas heat -- a district judge was willing to hear an appeal to fairness, even in the face of horrifically "bad facts," the Houston Chronicle reports. When former Texas state Senator and US Congressman Craig Washington demonstrated to the court that, of 68 prosecutions for deaths involving immigrant smuggling, US Attorneys only pushed for the death penalty with his client, who is black, U.S. District Judge Vanessa Gilmore demanded that federal prosecutors explain their decision and whether the defendant's race was involved.

Prosecutors basically told Gilmore to buzz off, and simply did not comply with her order to reveal their reasoning. They also refused to provide the judge with that refusal in writing, even when she threatened to hold Assistant U.S. Attorney Tony Roberts in contempt.

Judge Gilmore reconsidered her contempt threat, and she declined to take the death penalty off the table -- after all, this was a heinous crime. Instead she decided simply to tell the jury that prosecutors ignored her order to explain whether their decision to seek the death penalty was based on race. Experts say that will likely carry significant weight with the jury.

This case exemplifies a lot of the reasons why I personally oppose the death penalty. I don't suffer under the illusion that all human life is sacred, and I don't disagree that what happened to these immigrants was unfathomably horrible and worthy of the gravest punishment. But I question whether we can know for sure that the government implements the death penalty equitably. If we can't, then whatever good it may engender in terms of public safety can not outweigh the damage to our constitutional government from its discriminatory application. In this case, Judge Gilmore clearly shares that concern. We'll find out soon whether the jury is willing to kill the defendant regardless.

UPDATE: I should note that Howard Bashman's How Appealing moves into the daily checks zone for Grits today. Searching around for more information about this case, I found that not only had Bashman pointed to this article yesterday, but he had an update that a three-judge panel from the Fifth Circuit stayed the trial in order to hear the US Attorney's appeal. Plus he'd linked yesterday to the New York Times magazine article discussed in the previous post. And, timely enough given the Fifth Circuit's possible intervention in Judge Gilmore's decision, he points to an editorial from the St. Petersburg Times declaring, "For the sake of justice, the Supreme Court will have to keep a careful eye on the 5th Circuit." From now on I'm checking with Howard first.

Sentencing guidelines shouldn't abandon equal protection

I'm glad states are looking at ways to incarcerate fewer people. It's important to focus incarceration resources on the most dangerous instead of non-violent offenders. But the Virginia system described in today's New York Times magazine makes me uneasy. Here's what they're doing:

In 2002, the Commonwealth of Virginia began ... [to encourage] its judges to sentence nonviolent offenders the way insurance agents write policies, based on a short list of factors with a proven relationship to future risk. If a young, jobless man is convicted of shoplifting, the state is more likely to recommend prison time than when a middle-aged, employed woman commits the same crime.

Virginia's new sentencing method was born of a budget crunch. Faced with the prospect of building new prisons after passing a tough-on-crime measure in 1994, the Legislature asked the state sentencing commission to figure out which nonviolent offenders could be kept out of prison without posing a risk of committing new crimes. The commission's director, Richard Kern, and his staff members tracked 1,500 nonviolent drug, larceny and fraud offenders for three years after their release from prison. The researchers found that men were 55 percent as likely to be rearrested as women, and that offenders in their 20's were a much higher risk than those older than 40. Being unemployed made offenders more likely to commit another crime. So did being single.

Virginia has created a 71 point evaluation system based on various critieria like gender, age and employment status. If a defendant scores higher than 38 points, it recommends jail time instead of alternatives to incarceration.

There's a big problem with that strategy, though: it probably violates the 14th Amendment to the U.S. Constitution, the "equal protection clause" that guarantees Americans won't be treated differently based on immutable characteristics like race, gender or age. The article quoted a critic arguing this point:

those who think punishment should reflect blameworthiness are not [pleased]. They argue that by penalizing offenders differently for the same crimes, for reasons that have nothing to do with moral culpability, the state has abandoned the idea that punishment is a form of ''just deserts'' for wrongdoing. ''If you're punishing people because of a bunch of factors that have nothing to do with blame, well, you're not in the business of doing justice anymore,'' said Paul Robinson, a law professor at the University of Pennsylvania. As he and like-minded legal thinkers see it, a woman in her 40's who deals drugs hasn't done anything more to earn trust or deserve a break than a male dealer in his 20's charged with the same offense. She has just gotten lucky, by falling into a group whose other members have generally proved a good public-safety bet. Meanwhile, jobless single men in their 20's start with 36 points on Virginia's risk scale, putting them on the cusp of going to prison before the crime they committed is even taken into consideration.

That last bit about jobless, single young men starting with 36 out of 38 points is what makes the system likely to be unfair, even unconstitutional. If you're young and male, you can't do anything about those facts, but in Virginia the system will punish you harder. The state insists its predictions of criminality hold true for three out of four young men, but even that claim highlights that the method is wrong one time in four; it uses estimates and guesses, not "science" as the state sentencing commission claims. On the scale of the entire U.S. criminal justice system, that 25% error rate would result in the unnecessary incarceration of tens of thousands.

The Times reports that nobody has challenged the system's constitutionality yet, probably in part because unemployed young men in their 20s can't afford an appellate lawyer. But the Virginia ACLU or a similar group should jump on the issue. Across the country states are struggling with how to punish non-violent offenders, and this method will undoubtedly be emulated. It'd be a mitzvah for the entire nation to go ahead and determine whether this kind of sentencing scheme will be held constitutional.

UPDATE

Yeah, and what's your point?

Libby seems to be recovering nicely from her moving day blues, and, upon hearing tales of cops roaming bus stations with sniffer dogs in Texarkana, she's wondering whether we've heard of the Fourth Amendment down here in Texas?

Yes, we've heard of it. And we're doing our dead-level best to undermine it, thank you very much. Besides, wait a month or so and maybe the US Supreme Court will declare that a dog sniff isn't a search. Then we'll have stepped all the way through the looking glass.

Recent biometrics coverage

Grits' December 2004 coverage:

"Biometric Blues," Stanzas One, Two and Three,
What Do Fallujah and Texas Have in Common?,
Why would they want all ten fingerprints?,
Bill Filed to Kill Houston Red Light Cameras,
Whither Texas on Biometrics After Intelligence Bill?,
The Biometrics of Face Veils, and
No Smiling.