All sides within spitting distance on racial profiling agreement

The Houston police chief wants additional racial profiling data gathered to clarify the meaning of observed disparities, AP reported this morning.

He also said the state should require all police agencies to collect data on traffic stops whether or not a ticket is issued. The 2001 racial profiling law requires law enforcement officials to collect data on traffic stops resulting in traffic citations or arrests.

"There are a lot of variables, and we're continuously fighting with the data to try and make some sense of it," [Chief Harold] Hurtt said.

Meanwhile, Grits reported Sunday about a new study by the University of North Texas of five Dallas-area police departments, where academics sympathetic to the police also called for additional data elements to be gathered to clarify what the reports mean.

What those stories don't say is that civil rights groups want essentially the same thing, with only minor differences in emphasis which will be hashed out in final negotiations at the Lege. All of the interested parties are within spitting distance of one another's positions, making it very likely that racial profiling cleanup legislation will pass this session. (Sen. Royce West will file the legislation this week.)

In addition, all sides also want a new central repository to gather and analyze the data. Law enforcement wants it because civil rights groups have been gathering reports and compiling statewide numbers themselves. They think those reports aren't "neutral" (though rarely does a department dispute the reported numbers), and would prefer somebody who will spin the data their way. By contrast, civil right groups wanted a central repository (and most of these new data elements) four years ago, and the tactic of compilng an independent report was a mere fallback position -- we'd prefer the state gather and publicly maintain the data. Now that proposal is almost non-controversial.

So what new data needs to be collected to make better sense of the racial profiling numbers? There are a few things:

• Contraband hit rates from searches: Most departments don't gather data on how often contraband is found during searches at traffic stops. (The Baron would be happy about this one.)
  
• Discretionary vs. Non-discretionary searches: Search data will be more meaningful if non-discretionary searches (searches incident to arrest, inventory searches of impounded vehicles, etc.) broken out so that "consent searches" can be isolated both by race and by whether contraband was found.
• All stops: The law currently only requires data collection at citation stops, excluding stops with written or verbal warnings or where, for whatever reason, no ticket was issued. That skews the data.
  
• In/out jurisdiction: It will help calculate a "baseline" for comparing local traffic stops if police identify whether each driver lives in the jurisdiction. That way, census or other baseline data may be compared apples-to-apples to stops of in-jurisdiction residents.

The creation of a central repository and collection of these additional data elements will go a long way toward making racial profiling data more useful and widely accepted as valid. Currently, Texas racial profiling data is not detailed enough to draw hard conclusions in good faith about whether or not profiling is occurring, even in the face of large disparties in how folks are treated. (I've argued that disparties in search practices between departments are more significant than racial disparities within any one department.) The new data elements will let police, researchers, local governing bodies and the public parse the numbers more closely. Once we have that information, analysts can narrowly hone in on circumstances where officers have more discretion, carving out the stuff they're required to do by law, like searching someone when they're arrested.

Four years ago Texas law enforcement interests thought they were very clever to fight these additional data elements' inclusion in racial profiling legislation. And they were especially proud of themselves for ensuring that departments only filed reports locally, not with the state. Now, they've turned 180 degrees -- police want more and better data and the central repository they opposed when the bill first passed.

It's a funny ol' world.

Higher ed committee debates free speech on campus

In 2003, free speech legislation aimed at Texas university campuses was scheduled for a vote by the Texas House of Representatives on the day that Democrats fled to Ardmore, OK as part of the redistricting fight.

The same bill, this time titled HB 487, is up in the House Higher Education committee at 2 p.m. today, and given recent events, its passage is more important than ever. Indeed, it may not be strong enough.

If you live in Austin, you've probably heard about the mess involving a rumor wildfire that the Young Conservatives of Texas planned to do an "immigrant hunt" in Austin the way the group did at the University of North Texas (UNT). The stunt is designed to oppose President Bush's ideas for expanding the guest worker program.

I oppose YCT's agenda on this topic and find the imagery in their UNT skit abhorrent, as well as juvenile and kinda stupid. MUCH more alarming though, is the idea that a mob of people who agree with me about that would take it upon themselves to chase the YCTers out of UT-Austin's free speech area. Some even picked up food from YCT's West Mall table and hurled it at their political opponents. The Daily Texan headline read, "Protest ends YCT West Mall event." That's a full-blown disgrace for the anti-YCT crowd, IMO.

Such petty thuggery has no place in American politics, whatever your views. It goes against everything this country stands for -- most especially the Jeffersonian principle, so critical to free public discourse, that error of opinion may be tolerated where reason is left free to combat it.

Let me be clear: It is never, never, a smart strategy to assemble a mob of people in order to shout somebody else down. Nothing good can come of it. We don't win unless we defeat the ARGUMENTS, not the speakers.

Equally troubling was the university's reaction, according to the Statesman:

University students have the right to be able to express their opinions on campus, but "the prospect (of an illegal immigrant hunt) creates a hostile environment," said Teresa Brett, associate vice president for student affairs and dean of students, who watched Wednesday's demonstration. "It makes our campus less inclusive for students of color here."

What the hell? A mob chases a student group off the West Mall, and all UT administrators have to say is that the group they assaulted was creating a hostile environment? Throwing baked goods wasn't "hostile"? Isn't that justifying, instead of condemning, the protesters' behavior? Why didn't UTPD step in to protect the YCTers free speech rights, I keep wondering?

Which brings us back to HB 487 and free speech on university campuses. The legislation first originated when the UT-Austin administration denied permission for a pro-life organization working with a student group to erect a large, travelling photo display on the West Mall. They were first turned down, then allowed to put the display elsewhere, but had to remove messages from the national organization. Students had to black out portions of pamphlets and cover portions of their signs with cardboard.

Most often, restrictions on student free speech come directly from the university. In El Paso, UTEP denied a student Chicano cultural organization access to university facilities because an audience became too large for their small free speech zone. UTEP also denied 24 requests for permits from a student who whished to host a forum on student issues, including one called "Censorship on Texas Campuses." The University of Houston prevented a leader of a pro-life student group from carrying a sign that read, "Life is Beautiful: Choose Life" in Butler Plaza, a center of student activity.

HB 487 was designed to affect these types of situations where the university restricts free speech. It reads, in full: "Regulation by the governing board of an institution of higher education of the time, place and manner of speech and assembly may not be more restrictive than necessary to protect normal academic and institutional activities."

Would that language have had any effect in the YCT case? Perhaps not. The bill says a university must permit free speech that doesn't disrupt normal academic and institutional activities. But maybe they could play a further role: actively protecting individual liberty. Perhaps the law should tell universities, since they obviously don't independently get it, that it's their responsibility to protect students' free speech rights, even when what students have to say is unpopular. A clause could be added to the end of the bill text reading, "or to limit infringements on speech by any person on university property." That would tell universities they must ensure that intimidation tactics never prevail.

Free speech on university campuses deserves protecting, even from people with whom I agree.

UPDATE: Check out UT Watch's page in support of the bill.

How often do drivers refuse consent to search at traffic stops?

The law enforcement response to calls for banning "consent searches" inevitably includes some version of the argument, "Well, people can say 'no' if they want." So, since data is for the first time becoming available as a result of Texas' racial profiling law, in the real world how often do drivers actually refuse consent for police to search at traffic stops? The University of North Texas racial profiling study discussed earlier analysed not only the number of searches conducted by those departments, but how often consent was requested and refused.

The following table depicts consent searches requested, granted and refused for the five police departments participating in UNT's two-month study:

Consent searches requested, granted and refused for
Dallas-area police participating in UNT Racial Profilng Study

	Requested	Granted	Refused
Cedar Hill P.D.	45	43	2
Dallas P.D.	53	53	0
Desoto P.D.	7	7	0
Duncanville P.D.	25	21	4
Lancaster P.D.	10	8	2
Total	140	132	8

So in 94% of instances where police requested searches without probable cause, drivers gave consent to have their vehicles searched. (The numbers are relatively low because the study only lasted two months and not all officers participated.) Most of those searched almost certainly didn't know they could refuse, or felt pressure not to, which is why the consent rate is so high. By contrast, in Austin, when drivers knew they could refuse consent because they had to sign a written form, the number of consent searches declined by 63% last year.

The study did not break out contraband hit rates specfically for consent searches.

UNT Academics: Centralize, Standardize Racial Profiling Data

Another study has reached a similar conclusion: Texas' racial profiling law needs to be tweaked for the data collected to be more useful as a diagnostic tool.

A group of academics from the Univeristy of North Texas at Dallas have studied racial profiling data from Dallas area agencies and concluded that new data elements need to be collected to accurately measure racial profiling, the Dallas Morning News reports. I've got a copy of the study, but I can't find the full thing online.

Rather than analyze racial profiling data gathered under the law, UNT researchers got five Dallas-area police departments to use a special scantron form they created to gather data for a two-month pilot. So the numbers they're looking at aren't the same as those analyzed from officers' annual reports required under the law.

Still, they came to many similar conclusions to a report released recently by Texas civil rights groups. UNT's researchers think a new central repository for agency data should be created, that data collection and reporting methods should be standardized, and that additional data elements should be gathered in order to make the data more useful. For the most part, they even want the same additional data elements. So I agree with a great deal of the study's findings.

I'm not sure I'm equally comfortable, though, with their recommendation to "Develop the Institute on Race, Crime and Justice at the University of North Texas at Dallas as a statewide repository for racial profiling data and analysis of all motor vehicle stops in Texas." In other words, THEY want to be the central repository.

Don't get me wrong. As long as all the data is public and folks like those of us in the civil rights movement can access it and do our own analyses, in the end I don't care who gathers and stores it.

I'm troubled and a bit confused, though, by the academics' belief that gathering data has "made the issue of racial profiling muddled and even more controversial." I don't agree that invigorating the debate with evidence, even incomplete evidence, has been harmful.

For starters, their position ignores the fact that before data was gathered, law enforcement representatives routinely denied any disparity existed at all in who was stopped and searched. Now, you almost never hear those blanket denials. Everyone knows minorities are stopped and searched more often, and the debate is now about why. In that sense, the existence of hard data has definitely contributed to civility by making such inarguably incorrect but previously common claims impermissible. That has created space to talk more plainly about the real sources of disparities, some of which are the result of officers' discretion and some of which aren't -- how many searches occur "incident to arrest," when an officer is required to search? How many consent searches resulted in contraband? Those are important questions, and we have reached them because of the debate over the meaning of agency racial profiling reports.

That's not the study authors' view, though. They go on further in this vein:

Rather than clarifying the facts and identifying some common ground of discourse, the data collection and dissemination process that has occurred since the new law passed seems to have inflamed rather than lessen passions, and has served to place patrol officers and police administrators squarely in within the crosshairs of both camps.

(The other "camp," they're referring to, are those who "argue that minorities are simply more likely to commit offenses that lead to traffic stops and searches." There's a few right-wing-think-tank-types who argue that, but in the political realm, it's mostly the police themselves, not some external "camp," who make those arguments.)

Having been in the thick of these issues before and after the law passed, I can honestly say their description does not match my experience at all. I've sat through countless he-said-she-said-finger-pointing sessions between community leaders and police in the last decade, and I'm sure I'm speaking for a lot of police and community leaders, too, when I say it becomes repetitive, boring, and unconstructive after a time. Data collection has introduced a new, evidence-based dimension to the debate that it never had before. It's too bad the report authors confuse invigorating the discussion with new facts with making it less constructive.

In years past, when someone in the community would accuse officers of racial profiling, the local police chief or officers union would respond by claiming more minorities were criminals or that community leaders hated cops, then everybody would get angry and flail about with little but futile fulminations ever resulting, at least in the absence of expensive, time consuming, and divisive litigation. Now, when a community leaders think racial profiling is happening, they can look at the data to see how big is the actual disparity. And once an accusation is made, the department can provide additional, clarifying information to justify or at least better explain the data, a lot of which will be required to be reported anyway if the Legislature standardizes and centralizes racial profiling data reporting.

The report also recommends that agencies NOT report their data to their local governing bodies! That seems like a non-starter. Those folks want and need to know what's happening in their department.

We're just at the beginning of a substantive societal debate over the meaning of racial disparities in the criminal justice system, and better tools are needed to analyze racial profiling data to narrowly focus on officer discretion. Certainly, too, that debate will be better informed when more and better data are collected. But it'd be wrong to underestimate the importance or substance of what's gone on so far.

High-tech solutions can't stop fake IDs

Did you have a fake ID in high school? I did. I had one for years, from when I was perhaps 16 years old or so. Smith County, where I grew up in East Texas, was "dry," so we'd drive 30 miles down state highway 31 to Kilgore in Gregg County, where to this day a passel of run-down liquor stores sit invitingly just across the county line. It was never rejected.

In fact, ultimately I had two fake IDs. Like Charles Kuffner, I'm one of the unhappy few Texans back in the 1980s who reached 19 years old, could legally drink for a few months, then saw the laws change to restrict drinking again until I was 21, so I had to get a second fake ID when I was in college. I don't really recall how I got them, or from whom, but it wasn't difficult, and I didn't know any underage folks who wanted to drink who found the ID thing to be a real barrier.

Supposedly, 9/11 upped the ante on fake IDs. Forget for a moment that the actual hijackers had real IDs issued by government agencies based on forged primary documents. None of these new high-tech ID card programs would have affected what they did at all. Regardless, though, technology vendors, motor vehicle registration agencies, and most of all the Bush Administration are promoting the wrongheaded notion that throwing more high tech gadgetry at the ID problem will solve it.

This technophile reaction to 9/11 holds that every potential danger can be resolved by purchasing this facial recognition technology or that newfangled, bar-coded ID to prevent terrorism. It won't. It can't even prevent 19-year olds from buying beer, much less prevent committed adults willing to give their own lives from killing a lot of people.

The frantic search for techological solutions doesn't even make sense. The terrorists' strategy on 9/11 was to use LOW-tech means to exploit our society's reliance on high tech gizmos -- they used box cutters to take over a plane, for heaven's sake -- so the high-tech solution is obviously, precisely the WRONG strategy to confront the direct threat, like fighting fires with gasoline.

A fascinating article in this morning's New York Times demonstrates to me the fallacy of thinking technology can stop a creative, determined opponent from getting a fake ID. Titled, "The ID Wars: The Fakes Gain," the fascinating conclusion is even worse than the title -- the fakes were always ahead, and those who would prevent the creation of fake IDs do not now and have never been able to do so. All the new technology brought to bear on the problem has been stymied, or even made things worse as the pool of people technically qualified to make sophisticated fakes has grown exponentially.

Despite these obvious unintended consequences to the security crowds techno-fervor, vendors and government agencies continue to tout endlessly more expensive high tech solutions, always justifying them with trying to prevent terrorism:

While getting a fake ID is a right [sic] of passage for many young people who want no more than access to the occasional six-pack or campus pub, the potential security threat posed by forged drivers' licenses - most prominently, the threat of access to commercial airliners - has cast the old barroom conflict in a new light.

"People think of fake ID's for buying beer or cigarettes when you're 19," said Sgt. William Planeta, who runs the New York Police Department's document fraud squad. "But it has a lot of different implications in a post-9/11 world. You can use that fake ID to do all sorts of things."

In an effort to catch up with counterfeiters, therefore, the government and a growing document verification industry are turning to both legislation and technological innovations. "We're going to give the fake ID a run for its money," said James E. Copple, the director of the nonprofit International Institute for Alcohol Awareness at the Pacific Institute for Research and Evaluation, with headquarters in Maryland, which studies public health.

That gentleman, Mr. Copple, is kidding himself -- or else blowing smoke to justify his next research grant or pet vendor's product. Those kids are going to run him to death. He'll never be smarter than a million committed underage would-be drinkers. Not on his best day. Not on anybody's. They know what they want, have money to get it, and that level of high-dollar demand will cause market solutions to avail themselves. Reported the Times:

"ID's made by students tend to be much better than ID's you buy in the Village or Times Square," said a 19-year-old Columbia sophomore who has a fake driver's license and asked not to be identified for fear of the police. As for the importance of having a fake ID, she said: "All of my friends have fake ID's, everyone I know from high school and all my friends at school. It's definitely a necessity."

Over time, technology, skills, and high-tech resources have become cheap and available to anybody, in particular to many, many students. New high-tech ID card gadgetry, by the time it's identified by the govenment, researched, opened for bids, a vendor is chosen, and the technology is used in the real world, often has already been rendered antiquated upon its release by the rapid-pace growth of cutting edge technology, and lots of people know how to manipulate it. Said the Times:

THE nation's fixation with security cards and ID systems has also been a boon for manufacturers of fake ID's. The widespread use of corporate ID's has created a large pool of people who know the inner workings of the security features in the cards. In online chat rooms dedicated exclusively to the manufacture of fake ID's, unscrupulous members of this pool - including some drivers' license bureau workers, the police say - share or sell information about security features and even run a black market in the more sophisticated components of ID's.

"There are guys online who manufacture the bar codes and holograms," said the Columbia student who made fake ID's. "The hologram like on a Texas will glow. I can order that." ...

Licenses store information in two formats: magnetic stripes like those on credit cards, and two-dimensional bar codes, strips of small dots arranged to convey information in a kind of graphic Morse code. Magnetic stripes can be erased with a magnet and reprogrammed with, say, a new birth date, using basic ID-making equipment, and bar codes can be photocopied or transferred from a legitimate ID to a fake one.

None of the current drivers license re-engineering proposals in Texas will stop fake ID-makers who are able to do all that. I can't think of any that would, and if they did, the idea would probably be outdated by the time it hit the streets. The technical capabilities and physical means for making fakes have simply become too democratized and well-dispersed to think ID cards can be a source of absolute security. Texas DPS was awfully proud of that hologram, for example, bragging to the Legislature when it was implemented, just as we hear now, that it would solve the fake ID problem. Instead, the kids think it's a joke and it hasn't even come close to stopping the fakes. The Times described a Louisiana case where LSU students were manufacturing "perfect" Texas IDs:

Often when the police encounter a fake ID these days, they are more interested in getting information on who made it than in prosecuting the under-age user.

That was the case in Louisiana in late 2003, when a 19-year-old L.S.U. student named Corey James Domingue died of acute alcohol poisoning after using a fake Texas driver's license to buy four fifths of liquor from a local Winn-Dixie supermarket. By questioning Mr. Domingue's roommate and friends with similar forged ID's, Louisiana authorities were able to unravel a high-tech ring that had issued thousands of counterfeit licenses.

"These kids built their own computers from scratch," said Steven E. Spalitta, the enforcement director of the Louisiana Office of Alcohol and Tobacco Control, who handled the case. "We learned the ID's were not just perfect but they were encoded. There's almost no way you can tell it's a fake with the naked eye."

In all, five people pleaded guilty to forgery and a sixth is facing trial. Using computer records Mr. Spalitta's agency also tracked down and issued hundreds of criminal citations to students who bought fake ID's from the ring.

The worst part, I'll guarantee there were 20 more ready to take their place. They're never going to stop that. If every 19 year old who wants one can get a fake ID, then no terrorist would have any difficulty -- that much of the technophile's arguments are true. But the nexus of possibility they fear has nothing to do with how the terrorists attacked us -- they planted sleepers in the U.S. who had legitimate documentation, not crude, dorm-room fakes. It's a logical fallacy, then, to conclude that to stop the terrorists, one must prevent underage drinkers from getting fake IDs. The latter may be a desirable goal, and society may even decide it's worthy of investing substantial resources to try, however futilely, to do so. But everyone should be clear -- it has nothing to do with Al Quaeda or stopping terrorism.

High-tech government ID schemes are expensive, speculative, and, to judge from recent technological history and trends, doomed to fail at the goal of preventing their reproduction. They serve only to limit and regulate the law abiding. Anybody determined to obtain a fake ID will find a way to do so.

Oh, THAT religious test

You know, when I'm wrong, I'm wrong.

On Texas Independence Day I wrote that, given the rhetoric bashing the priesthood in which so many Texas revolutionaries indulged, it'd be difficult to make a case that Texas' founders wanted to found a Christian, not a secular state. Well, I'm an idiot. Maybe the word "Christian" isn't in the text, but check out the language of Article 1, Section 4 of the Texas Consititution:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

No religious test except that you have to believe in God! That's current (if meaningless) language right there. (It was invalidated by U.S. Supreme Court decisions in 1961 and 1978.) I'm not sure if that was in the original 1846 state Constitution or if it's a post-Civil War add-on, but ... Damn!

Via a really cool site I found via CrimProf blog called Dumb Laws

BIG undercover drug sting in Fort Bend county

The Houston Chronicle yesterday had this enticing blurb:

Thirty-six people were arrested Wednesday in Fort Bend County on drug charges stemming from a four-month undercover investigation.

Those arrested are accused of dealing crack to undercover officers, Sheriff's spokeswoman Jeannie Gage said. The investigation led to 128 sealed felony indictments issued against 56 people.

Fort Bend County is next door to Harris County (Houston), and is part of the Harris County drug task force, though the blurb gave no indication whether this was a task force bust. It did mention, though, that the drugs were sold to undercover cops, not to some snitch.

It's hard to imagine buying drugs from 56 different dealers, isn't it? I mean, imagine how many drug users there'd have to be in Fort Bend County to keep that many dealers in business. If it were true, the streets would have to be lined with junkies like a shooting gallery. I'll admit, I haven't been there in a couple of years, but I hadn't heard the place had let itself go that badly.

Or, it might not be so bad. Instead, I'd wager, the notion that many of these folks are drug dealers is just a legal fiction, though I won't be surprised if a few of them were actually busted with signficant weight. The usual M.O. in these investigations, just like in the Tulia case, is for an undercover officer or snitch to befriend a group of addicts, then flash around "buy money" to convince his new friends to purchase drugs on his behalf. If they do, whether for a cut or just from friendship, then they're part of a transaction, not just a possession case. Using that strategy, it's not hard for undercover drug cops to rack up these kind of big numbers; otherwise it's almost impossible to imagine. Not quite as impressive as the 72 people busted in tiny Palestine last fall, but 56 is an awful lot of folks.

Say it ain't so, Radar?

Drug task forces bring corruption into America's heartland. An Ottumwa, Iowa drug task force office manager (hey, isn't that the hometown of Radar O'Reilly from M.A.S.H.?) was arrested for embezzlement this week for stealing funds from the task force. She will be charged with theft and forgery, which one often sees when officers have been forging confidential informant payment vouchers.

Elsewhere, drug task forces are bracing for the Bush budget cuts.

Syringe exchange: Bipartisanship with a Houston flair

It won't be difficult to remember the companion bill to SB 127 by Texas state Sen. Jon Lindsay, R-Houston, which would allow local governments to do syringe exchange programs. Yesterday state Rep. Garnet Coleman, D-Houston, filed HB 2005, with the same purpose and language.

Let's hope the bill number is an omen.

Coleman sits on the House Public Health Committee, and, though a Democrat, is one of the most knowledgable and experienced legislators in the entire chamber on healthcare matters. If bipartisanship on the medical marijuana bill authorship (Naishtat/Keel) is an Austin affair, the other big harm reduction proposal this session, local option for needle exchange, so far, has a Houston flavor.

It's no wonder. Big cities and counties, especially those that operate hospitals with emergency rooms, are desperate to stop the spread of communicable diseases like HIV/AIDS and Hepatitis C, which wind up costing the local taxpayers, in the end, through ER costs, or later on though healthcare costs in jail or prison. This is a milestone, of sorts. Then-Rep. Glen Maxey, D-Austin, carried it for years in the House, then after he retired Sen. Lindsay carried it in 2003 in the Senate. But I'm not sure the bill has ever had sponsors in both chambers during the same session.

As described by Grits previously, the Lindsay/Coleman legislation would let local governments choose to enact programs proven to reduce the spread of disease and promote habits of personal responsibility among addicts. Nobody would force any community to have one. Plus, they provide social workers and public health programs access to a particularly hard-to-reach audience that we know is spreading these diseases. The idea really makes a lot of sense. Here's hoping HB 2005 passes in '05.

Bleeding Red Ink: Why LBB is to Blame for Bad Prison Budgets

I've said it before, but the Texas Legislative Budget Board over the years has created a lot of unnecessary red ink in the state budget by misleading the Legislature about the real costs of increasing prison sentences.

Here's another example. On Monday the House Law Enforcement Committee will hear HB 311 by McReynolds, which increases the penalty for making false statements to a police officer a state jail felony if they pertain to a felony investigation. I've got other concerns about the bill, e.g., a lot of lies are told to the police for juvenile, silly, or emotionally disturbed reasons that don't merit treatment as a felony, but for the moment, let's look at the financial aspects.

Right now, the penalty for that crime is a Class B misdemeanor, punishable by up to six months in the county jail. Local government pays those costs. State jails are paid for by the state budget. So, if you increase the penalty from a misdemeanor to a felony, logically you must increase state budget costs by the cost of incarcerating X number of people who annually falsely report felonies to the police times about $40 per day, or $15 grand per year.

I have no idea how many people are convicted of this crime each year, or what kind of budget figure we're talking about, but presumably it's some positive number, or why else would Rep. McReynolds be proposing the law? Let's lowball and say the state would incarcerate ten new people each year who lie to police in felony investigations. A state jail felony sentence is two years, at about $15,000 per year, disregarding the cost of building new facilities. (Remember, Texas prisons are full and we have no more space for these folks.) So that'd be $150,000 in the first year, $300,000 in the second, for a total of nearly half million, minimum, in the first biennium, probably to lease space while we build more costly, presently un-budgeted prison units.

The Legislative Budget Board, though, says that "No significant fiscal impact to the State is anticipated." So then, with a "fiscal note" of ZERO, the bill becomes a lot easier to pass during a session defined by belt-tightening and scrambling for cash to pay for schools.

That it's patently false, a useful fiction everyone involved knows isn't really true, apparently doesn't matter. LBB is a political entity, not some ivory tower full of objective analysts. Their goal with a fiscal note is to make the bill sponsor happy, or at least not excessively unhappy, not to provide accurate information so the budget numbers will be right. It's been that way as long as I can remember.

Bill to reduce pot penalties up on Tuesday

Quite a few people have emailed or asked in the comments what's happening with proposed legislation to reduce penalties for the lowest level pot possession offenses. Well, you won't have to wait long for more news.

HB 254 by Rep. Harold Dutton, D-Houston, will be heard in the Texas House Criminal Jurisprudence Committee on Tuesday. The legislation would restructure low-level pot possession offenses from a Class B misdemeanor to a Class C offense. (Grits previously discussed the bill here.) That change would help solve overcrowding in county jails, reduce local indigent defense costs (counties must pay for lawyers for B misdemeanor defendants, but not C misdemeanors, which are the equivalent of expensive traffic tickets), and actually raise revenue instead of soak the taxpayers indefinitely.

Jails in most Texas counties of any size are basically full. If it weren't for the fear and inertia that keeps institutional political players from taking risks -- like going against the tough-on-crime orthodoxy regarding marijuana -- this legislation would pass in a heartbeat. It's a win-win for everybody concerned. It raises revenue, reduces jail overcrowding, and would free up a lot of scarce police resources to do more important things.

It'll be fascinating to see who, if anybody, opposes Dutton's bill. I'm not sure any significant political interest, really, in practice, has a problem with it. The barriers to passage are more intangible, in the minds of the legislators who must approve it, not from folks vocally opposing the bill. Just a little bit of political cover -- say from counties making practical and financial arguments to address jail overcrowding -- and the bill might have some legs. A lot depends on what happens on Tuesday. I'll be watching.

Austin: Drivers Refuse Searches When They Know They Can

Sixty three percent fewer Austinites consented to police searches of their vehicles when they knew they had the right to refuse, according to the Austin Police Department's new racial profiling figures for 2004, released yesterday. (Inexplicably, the release and report are not online.) The number of traffic stops in which a search was conducted in Austin declined last year to 11,250 from 15,785 in 2003, with most of that reduction due to a decline in so-called "consent searches," where an officer asks permission to search but has no probable cause or legal basis to do so.

The news comes on the heels of a statewide report on 2003 racial profiling data by civil rights groups (conflict alert: I'm listed as an editor in the acknowledgements) that showed Austin PD still searches drivers at traffic stops more frequently, for example, than Dallas or Houston.

Last year, when those same civil rights groups produced the first-ever statewide analysis of Texas racial profiling data, local activists called for a complete ban on consent searches by the Austin PD, which consent searched blacks more than five times as often as whites. Latinos were also oversearched. The chief and city manager responded by pledging to reduce the number of consent searches by 40%, but did not tell activists how they intended to do that. (Consent searches have been banned entirely in New Jersey, Minnesota, Rhode Island, Minnesota, and by the California Highway Patrol.)

Maybe it had been publicly discussed somewhere, but I didn't know until their comments in the paper last week (in response to the new report) that Austin PD instituted a new policy in 2004 requiring officers to get written consent to search a vehicle at a traffic stop if they don't have probable cause. That's the mechanism, then, that functionally caused the 63% decline in consent searches.

APD's new policy is similar in concept to Texas legislation proposed in 2001 by then Rep. Domingo Garcia, D-Dallas, which would have required officers to inform drivers that they didn't have to consent to a search and they were free to go.

In other words, when people were informed of their Fourth Amendment rights, 63% didn't want to be searched. That implies that thousands of people were being intimidated into allowing searches before, because they did not know their rights. (I'd be remiss not to mention that this change in tactics resulted in no discernible increase in crime or decline in police effectiveness.)

That's a good thing, an important development, and it merits the Statesman's headline saying APD's numbers were "praised by civil rights groups." But that's not the whole story. Yes, the number of consent searches went down, but the city's goal of reducing the rate of "unproductive searches" was not achieved.

By "productive," APD means that a search actually resulted in finding contraband -- almost always drugs or (less frequently) guns. APD had predicted that the searches excluded by their new policy would cause the percentage of searches where they actually found something to increase, but instead it actually declined slightly, from 12.5% in 2003 to 12.1% in 2004. (In 2003, APD was twice as likely to find contraband on whites as blacks, even though blacks were consent searched at five times the rate of whites -- comparable race-designated contraband figures were not included in the new report.)

"It is uncertain why the seizure rate was not better when the officers applied stricter procedures to asking for consent to search," APD's report declared. Really? It seems pretty obvious to me. It's difficult not to conclude from the data that searches where there is no probable cause to believe a crime is committed -- i.e., consent searches -- find contraband basically randomly, and that the officers' much-touted Super-Spidey-Sense that's supposed to detect crooks doesn't work that well.

Instead, I'd hypothesize from these figures that around 12% of vehicles in Austin possess contraband, no matter what, since that's the rate at which it was found both when consent searches were profligate and when they were restricted. You'd probably get close to the same rate if you stopped EVERY car on the road and searched them. (Bolstering that estimate, APD reports that 14.4% of pedestrian stops find criminal activity, and those stops occur primarily "when someone is acting suspicious," while traffic stops primarily occur basd on "a violation of the transportation code.")

Austin's experience offers a number of important lessons. First, police departments can reduce the number of consent searches without harming public safety. Second, an overwhelming majority of drivers will refuse consent when they know they have a right to do so. Third, consent searches find contraband essentially randomly -- "stricter procedures" don't cause the percentage of "productive" searches to increase, and in fact they declined slightly.

Finally, and perhaps most importantly, Austin's response to problematic numbers in their racial profilng report shows that data collection and analysis can influence policy. Austin saw its bad numbers, community leaders called on them to do something about it, and the city implemented a new policy that improved but did not resolve the situation. Everything's not perfect, and I've no doubt debate will continue. But Austin's case study is exactly the type of result we hoped for when the racial profiling law passed back in 2001 -- generating hundreds of local debates that, little by little, can lead to change.

Jailbait in Beaumont

In a cover story this week called "Jailbait," the Beaumont Examiner contemplates how easily a young man might unwittingly become a sex offender in an era when some 14-year old girls look like college-age hotties, and what it means if he does.

The article highlights the work of an new Texas group called "Save Our TexSons" that's taking on an important but truly taboo topic: they were formed to criticize Texas statutory rape laws and the application of lifetime sex offender registration to consensual sexual acts between youths.

Report: Texas blacks sent to prison at five times white rate

I haven't had a chance to read the report by the Justice Policy Institute on Texas sentencing policy, but Ann has AP's coverage here, and the full report is here. Democracy Now! did a piece on the report, streaming video for which is available here.

The study emphasized racial disparities, said AP: "blacks are sent to prison at a rate five times higher that whites in Texas. Latinos were incarcerated at twice the rate of whites, the report said."

Cool under fire

Want to see what "cool under fire" looks like at the Texas Legislature? Watch the video of my ACLU of Texas colleague Andrea Marsh explaining why it's a bad idea to lower qualifications for lawyers certified to try death penalty cases. She was testifying against Chairman Terry Keel's HB 268 in the House Criminal Jurisprudence Committee on Tuesday. I posted the bulk of her written remarks then, but the fireworks in the hearing are well worth watching, if you've an interest.

Death penalty critics are about as popular in Texas as a pig in Sunday School, and Chairman Keel showed up to the hearing ready to smoke some bacon. Instead, it was Marsh who carved the bill up like a Sunday ham. Keel's no slouch either, though. It was a good 'un.

Check out their intense exchange. It's the first bill up, so just watch from the beginning. Great job, Andrea: You're a star, baby.

Happy Texas Independence Day

If heaven isn't Texas, pardner, I don't want to die.

The Austin Lounge Lizards,
"One more stupid song about Texas"

March 2 is Texas Independence Day, which always leaves me with mixed feelings. On the one hand, it's a painful reminder that Texas was the only state to twice fight wars over slavery -- the March 2, 1836 Declaration of Independence, expressly authored on behalf of the "Anglo-American" population, was a reaction to Santa Anna's decision in December 1835 to abolish slavery in Tejas. After 1829, Tejas was the last Mexican state where slavery was still allowed. (Sam Houston's first two acts as Texas president in the fall of 1836 were to re-enact slavery and to send a representative to Washinton to request entry to the union as a slave state.)

On the other hand, I always enjoy recalling that my beloved home state was founded by folks whose criticisms of the government were that:

every interest is disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the everready minions of power, and the usual instruments of tyrants.

That's from the Texas Declaration of Independence (link via Vince). Can you imagine a Texas politico so openly criticizing the government's deference to religion in the current environment? A lot of folks on the religious right have spent a great deal of time trying to demonstrate that the United States was founded to be Christian nation. While I don't agree, there's occasional fodder in the historical record for them to make a case. I'd like to see somebody make that case for Texas.

Also, given my own interests, I'm appreciative that a primary criticism of the Tejanos was the Mexican government's approach to criminal justice:

It incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the acceptance of our constitution, and the establishment of a state government.

It has failed and refused to secure, on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen.

And lest we think Texas' founders would have all been Ron-Paul-style libertarians, check out this complaint calling for government support for public education:

It has failed to establish any public system of education, although possessed of almost boundless resources, (the public domain,) and although it is an axiom in political science, that unless a people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self government.

The folks who founded this state weren't all heroes, though their collective effort was heroic. But their motives and actions were a mixed bag. That said, they were products of their time, and judging them by 21st century values seems especially unfair. Plus, many of their motives were perfectly legitimate and would be justified today -- for example, revolting against an unfair criminal justice system or the failure to fully fund public schools.

But for a proud Texan, that's why, for me, most years, March 2 represents a day of reflection more than celebration.

Britain: Surveillance Cameras Do 'Not Stop Crime'

Researchers from the British Home Office have concluded that surveillance cameras did not reduce crime in 13 of the 14 settings where their use was studied. Closed Circuit Television systems were billed as a key crimefighting initiative over the last decade, but now the evidence is in that they don't work. According to an article in the 2-24 London Evening Standard:

While there was strong public support for CCTV before it was installed, opinion began to shift when people realised the cameras made little difference.

And researchers found that some of the schemes were botched, making them less effective. Six of the 14 control rooms were left unstaffed for part of the day or night. And in some cases, cameras could not capture clear images at night due to the glare from artificial lights.

The findings come as a blow to the Home Office, which has trumpeted CCTV as a key crime-fighting weapon for the past 10 years.

The report's author, Professor Martin Gill of the University of Leicester, said: "For supporters these findings are disappointing. For the most part CCTV did not produce reductions in crime and did not make people feel safer."

The only one of the 14 schemes found to be a success was targeted at car parks, where it led to a significant drop in vehicle crime. Other schemes in city centres, residential areas and hospitals produced no clear benefits.

Professor Gill said that because government funding was available for CCTV schemes, local officials tended to fit the cameras without any clear goal in mind.

Right now in Texas, legislators are considering whether to file legislation reinstating certain public information rights about government surveillance cameras, and curtailing the worst potential avenues for privacy abuses. This news should help that process along. One increasingly finds the security arguments for them less than compelling.

Via CrimLaw

UPDATE: Say hello to Firebrand Freedom, a new Texas blog by Reza "Irish Dave" Piri, which takes on the topic of closed circuit surveillance cameras this week.

Juvenile Death Penalty Overturned by Supremes!

Hurrah! The U.S. Supreme Court just overturned the death penalty for juveniles today on a tight 5-4 vote. The ruling will affect several Texas cases.

UPDATE: Check out the fine post by Austinite Amanda Marcotte on her Koufax-award winning blog Mouse Words on the ruling.

Don't Lessen Qualifications for Lawyers in Death Cases

Texas' "sleeping lawyer" death penalty case has become an international laughingstock, and for years, lawyers like Ron Mock provided such shoddy representation to capital defendants, they gave the entire Texas criminal justice system a black eye.

So why would anybody want to weaken qualifications for lawyers in death penalty cases? You can find out by watching (live stream starting 2 p.m. CST) the Texas House Criminal Jurisprudence Committee this afternoon take up a bill by its chairman, Rep. Terry Keel, R-Austin. Perhaps he'll explain. His HB 268 would weaken qualifications for capital attorneys, when they need to be strengthened, and capital defense better funded.

Just think how much time and money is wasted when a defendant's conviction is overturned because of ineffective assistance of counsel, not to mention the discredit such cases have brought onto Texas courts! Keel's bill would push the state's dysfunctional capital punishment system even further down the wrong path.

ACLU of Texas lege team member Andrea Marsh will be testifying against HB 268 later today, and I thought I'd share some details from the fact sheet she's distributing to committee members. I think it makes some strong points. With the federal courts already engaging in ever-more-frequent smackdowns of Texas death penalty cases, we need to make protections for capital defendants more rigorous, not loosen requirements. Here's the meat of ACLU of Texas fact sheet on the subject:

H.B. 268 Weakens Texas Fair Defense Act (FDA) Qualification Requirements for Capital Trial Attorneys: This is a Step Backwards and Will Allow for Appointment of Unqualified Lawyers

Lowering the current FDA standards for attorney qualifications in death penalty trials (which were adopted after much consideration and input from stakeholders) represents a step in the wrong direction and jeopardizes the improvements to capital representation that are beginning to materialize under the FDA.

• It is unwise to allow ex-prosecutors to be immediately eligible to serve as lead counsel in capital cases. Given recent Supreme Court opinions regarding the critical role of mitigation evidence in these cases, lead counsel in capital cases must be skilled in investigating, developing, and presenting their clients’ social history and other mitigation evidence. Because prosecutors do not develop social histories, and likely do not have experience in developing mitigation evidence, the wiser course is to have ex-prosecutors develop this skill set by serving as second chair defense counsel in at least one death penalty case before being given lead counsel responsibilities.

• Allowing ex-prosecutors to immediately qualify for lead counsel appointments will render meaningless the requirement that lead counsel “exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases,” for they will have had no experience in providing representation to death penalty defendants.

• The requirement that an attorney must handle a “significant number” of felony trial cases before receiving a first chair capital appointment was a carefully considered element of the FDA. Attorneys who have some, but not significant, experience in felony trials should not be permitted to serve as lead counsel in capital cases. The wiser course is to have these less experienced lawyers serve as lead counsel in additional serious felony cases before being given lead counsel responsibilities in a capital trial.

H.B. 268’s New Attorney Qualification Requirements for Capital Appeals Are Too Low

H.B. 268 eliminates most of the capital-specific qualifications currently required of attorneys seeking direct appeal appointments in capital cases, with the result that an attorney who has never worked on a capital case, either as defense counsel or as a prosecutor, may be eligible for appointment as lead counsel in a death penalty appeal. The bill specifically deletes the mental health/forensic expert witness experience and the mitigation evidence experience currently required. Weakening the FDA criteria in this manner will allow the appointment of direct appeal lawyers who have no experience handling two issues central to almost every capital appeal: mitigation evidence and forensics. These less-qualified lawyers should serve as second chair counsel before being given lead counsel responsibilities.

H.B. 268 Lists New Qualification Standards for Capital Habeas Appointments That Will Cause Unintended Consequences in Federal Court

H.B. 268 will have dire unintended consequences. By articulating objective attorney qualification standards, Texas would be the first state in the country to qualify for federal “opt-in” status under the controlling federal death penalty statute (AEDPA). This “opt-in” status would cause truncated federal habeas process – including cutting the filing deadline in half and allowing only one stay of execution regardless of the issues in the case. Texas is the only state in the country to have executed inmates (at least four) whose attorneys missed the current federal habeas filing deadline. Given the current pace of executions, Texas does not need to speed up the appellate proceedings further.

The New Attorney Qualification Standards Listed in H.B. 268 Will Not Improve Quality of Capital Habeas Representation

The standards will not cause a meaningful change in the quality of representation, as many lawyers who have historically not conducted investigations, missed capital habeas filing deadlines, exhibited other poor performance, or been subject to disciplinary sanctions by the State Bar will remain eligible to take these cases.

H.B. 268 Deletes the Current Requirement That There Be a Master List of Attorneys Qualified in Capital Habeas Representation, Which Will Result in Inconsistency

This statute does not require either the Court of Criminal Appeals or the Task Force to maintain a list of qualified attorneys – and, therefore, would allow individual judges to appoint attorneys of their choosing. This will create inconsistent enforcement of the standards across the state.

• Better Solution: Require attorney performance standards and mandate that the entity responsible for maintaining the list of qualified attorneys consider an attorney’s past performance when evaluating whether to place, retain, or remove an attorney from the eligible list.

H.B. 268 Fails to Address the Critical Issue in Capital Habeas Representation, Which Is Attorney “Competence”/Remedy

Under the current Texas Court of Criminal Appeals ruling, attorneys need not perform competently in capital habeas proceedings. This ruling thwarts the clear legislative intent behind the 1995 amendments to article 11.071, which was to provide counsel who would perform the duties articulated in the statute. The CCA’s ruling rendered those duties unenforceable. Currently, there is no remedy available at all even if an inmate can prove both that his lawyer was incompetent in his particular case and that but for his lawyer’s incompetence he would have filed meritorious claim.

• Better Solution: Provide a limited remedy for inmates who can prove by clear and convincing evidence that they received incompetent representation and that, but for the failures of their lawyer, they would have presented a claim that would have resulted in relief.

Police oversearching not all about race

A funny thing happened on the way to interpreting racial profiling data from Texas traffic stops: we found out white folks are subjected to unnecessary searches, too -- in some parts of the state, a lot of them.

Grits reported Sunday that disparities in who is searched at Texas traffic stops differ more by department than by race. Most departments do show racial differences -- i.e., usually blacks and Latinos seem to be searched more often than whites -- but much greater disparities exist from one department to the next.

The biggest problems seem to come in departments where oversearching is the policy for everyone, not just minorities. Sunday I looked at the big city PDs, so today I thought I'd examine what's happening at a few other departments.

Take, for example, the West Texas towns of Midland and Odessa. Whether you're black, white or green, you're much more likely to be searched after a traffic stop in Midland, hands down, compared to its sister city. Certainly, black folks are 4.2 times more likely than whites to be searched in Midland, and Latinos are searched 1.7 times as often, compared to 2.6 and 1.5 times, respectively, for Odessa. So both departments exhibit racial disparities.

But that doesn't nearly tell the whole story. Drill deeper and we find that everyone gets searched more in Midland. Black folks there are 6 times more likely to be searched at a traffic stop than in Odessa; Latinos are about five times and white folks are more than 4 times as likely to be searched in Midland as in Odessa. You're even more likely to be searched by the Midland County Sheriff, regardless of race. This table depicts the percentage of total traffic stops where searches were conducted, by race:

How many Permian Basin drivers were searched
as a percentage of local traffic stops by race

	Black	Latino	Anglo
Midland PD	25.1%	10.3%	6.0%
Midland Sheriff	41.4%	15.6%	11.5%
Odessa PD	3.8%	2.1%	1.4%

That big a difference can't reflect legitimate law enforcement needs, it seems to me -- Midland PD and the Midland County Sheriff obviously just have policies of oversearching at traffic stops. Sure, blacks and Latinos are searched more than whites, and those disparities demand resolution. But that's not the only problem, or even the greatest source of disparity. A white person pulled over by the Midland County Sheriff's Department is more than 8 times more likely to be searched than the same driver pulled over by the Odessa PD. Oversearching affects everybody -- it's not just a racial concern.

Similarly, you're a lot less likely to get searched if you're stopped by the Lubbock Police Department than if you're stopped by the Lubbock County Sheriff, again regardless of race. The numbers reported by Lubbock PD showed large racial disparities, much worse on its face than the County Sheriff. Black folks were searched 5.4 times more often than whites by Lubbock PD, compared to 3.3 times more often by Lubbock County Sheriff. Again, though, when you drill deeper, the Lubbock County Sheriff has a much worse problem because they have a generalized policy of oversearching everyone.

How many Lubbock-area drivers were searched
as a percentage of local traffic stops by race

	Black	Latino	Anglo
Lubbock PD	1.6%	0.7%	0.3%
Lubbock Co. Sheriff	20.8%	10.1%	6.3%

Bottom line, the Sheriff's policy of oversearching, not race, is the most important factor. Minorities are more likely to be searched by both departments, but a black person stopped by the Lubbock County Sheriff is 16 times more likely to have their car searched than if they were stopped by Lubbock PD. Not to be outdone, white folks are an astonishing 21 times more likely to be searched at a traffic stop by the Lubbock Sheriff compared to the local police department.

I could do this for departments all over the state. My hometown of Tyler, for example in Northeast Texas, searched blacks 2.6 times more than whites, compared to the town of Longview down the road which searched blacks 2.7 times more often. Sounds pretty similar, right? Well, check out the numbers as a percentage of traffic stops:

How many Tyler/Longview drivers were searched
as a percentage of local traffic stops by race

	Blacks	Latino	Anglo
Tyler PD	3.3%	3.1%	1.3%
Longview PD	19.6%	9.8%	7.2%

So once again, while both department's search patterns exhibit racial disparties, as a percentage of total stops, Longview is engaging in MANY more unnecessary searches than the Tyler PD. Indeed, whether a department has a policy of oversearching is a more significant factor than race: a white driver in Longview is more than twice as likely to be searched at a traffic stop as a black driver in Tyler.

To me, the debate over racial profiling isn't about accusing cops of racism, it's about treating people fairly and giving the public and departments tools to measure police practices to see if they're fair. These stats show that disparate treatment at traffic stops is about more than just race -- it's about documenting police practices that are eroding the Fourth Amendment for everybody.

See the report and local profiles, from which these figures were taken.