Do Texas counties violate drug offenders right to a speedy trial?

I'm no lawyer, so maybe some commenter can help me understand these things. If one category of offender spends, on average, 102 days in jail awaiting trial, and all other types of defendants receive trials in just 42 days, are they receiving "equal protection" regarding their right to a "speedy trial"?

That's what's happening to drug offenders in the Collin County jail, and apparently in other local jails around the state, contributing significantly to Texas' ongoing overincarceration crisis. The Collin County Sheriff and the District Attorney want to fix the problem by paying for a quicker, private lab -- not because they're worried about the constitutional rights of defendants, mind you, but because they need the jail space. Reported Krystal de los Santos of the McKinney Courier-Gazette:

Sheriff Terry Box said that the county is wasting money housing the drug offenders while they await trial, which cannot start until the District Attorney's office has proof that the substance they are charged with possessing or distributing is actually a drug.

"That's been one of our biggest problems," Box said "The drug tests are taking too long, while the inmate sits in jail taking up space."

Housing an inmate costs the count $69 a day when including indirect costs like salaries, or just more than $40 a day directly.

District Attorney John Roach said that city law enforcement officials are using the Texas Department of Public Safety laboratory, which takes weeks or in some cases months to return results for their drug analysis.

The Texas DPS provides the service free of charge, but is much slower than a local laboratory.

Roach said the average amount of time it takes for the county to start a case against an offender in possession of a substance is 102 days, while the average for other offenders is 42 days.

"That shows you how big that gap is," Roach said.

The 49 offenders awaiting lab results who are currently housed in the Collin County Detention Center have been in jail for 3,273 days total. At $40 a day, those inmates have cost the county $130,920. At $69 a day, they've cost taxpayers $225,837.

Those costs all come before the defendant is even found guilty, folks, much less sentenced. What's more, if DPS waiting times are the problem, that means the same time lag in drug defendants getting to trial must be occurring everywhere in the state. This is madness! Constitutional questions aside, how much savings could be had just by releasing most non-violent defendants on personal bond? It'd be cheaper even if you applied special conditions to their release like regular drug testing. Once again, one wonders where are the judges in this, and how are they allowing this mess?

I'm a proud Texan, but some mornings I look around at the criminal justice system in this state, in this country, and wonder if all the much-ballyhooed constitutional rights I was raised to cherish have become just hollow idols to which our government pays lip service, but no longer any real heed.

John Wesley Hardin: Reconstruction-era desperado

One of Texas' major outlaw icons from the Reconstruction era was John Wesley Hardin, who became a fugitive after murdering a black man in East Texas, then joined in Northeast Texas blood feuds on the side of anti-union clans against federalist supporters. Read this fine essay by Edward Southerland in the Sherman Herald Democrat on Hardin's criminal career for a flavor of that important period. (UPDATE: Here's part two.)

It's still astonishing to me how many aspects of Texas politics and culture to this day are influenced by ideologies prevalent during the war to end slavery and Reconstruction. After the Civil War, thousands of southerners fleeing Yankee occupation placed signs reading "GTT" on their homes -- "Gone To Texas" -- and headed west. Huge numbers came who were burned out by Gen. Sherman in Georgia, but also die-hard rebel holdouts from Alabama, Mississippi, Tennessee, etc., fled to the Texas frontier in droves.

Without knowing that history, it's really hard to understand local political attitudes in places like Brownwood, Tyler, Plano and Wichita Falls, where one still occasionally sees bumper stickers promising "The South Will Rise Again," and rebel battle flags are still a local icon. Most of the rebel migrants came through northeast Texas, and thousands settled there. Before long, the area become a hotbed of the most radical ex-confederate sympathizers to be found anywhere. Hardin's terrible crimes were committed in the midst of that embittered political stew, though politics cannot justfy them. His importance as an icon, though -- a hero to the southerners and an enemy of the state -- can hardly be separated from the zeitgeist of the times.

Meth and moral values

What is the religious community's stance on the morality of punitive drug laws? Apparently not what you'd think.

Via Doc Berman, the latest FAMM-Gram (pdf) from Families Against Mandatory Minimums, which is focused on opposing increased federal meth sentences, includes this fascinating passage from a June epistle to the Washington Post by Charles Thomas of the Interfaith Drug Policy Initiative:

Considering how often the Bush administration refers to moral values, it should consider that most major religious groups oppose mandatory sentencing, including the U.S. Conference of Catholic Bishops, the National Council of Churches, the United Methodist Church, Chuck Colson's Prison Fellowship Ministries, the Presbyterian Church (USA), the Episcopal Church, the Evangelical Lutheran Church in America, all four major black Baptist denominations, the United Church of Christ, the Union for Reform Judaism and the Unitarian Universalist Association.

No denominations are known to favor mandatory sentencing. The moral position on this issue is clear.

If only the moral positions of our nation's leaders could be determined such great clarity.

Overincarceration boosts Travis taxes

The Travis county jail is full, and expanding it will force new tax increases, the Austin Statesman reported Wednesday. New jail spending involves serious opportunity costs: in the same budget, spending on roads in the traffic-jammed Texas capital declines by 9%. Guess that means the commissioners court thinks Travis county voters would rather pay to incarcerate low-level offenders than build adequate road capacity -- I bet they're wrong. In any event, the jail soaks up most new spending in the budget. Reported the Statesman:

Much of the county's spending increase would go toward dealing with jail crowding, according to the county [budget] report.

"Clearly," the report states, "the predominant theme in this budget is the obligation to fund the dramatic increase in the jail population." ...

Christian Smith, head of the Planning and Budget Office, said the county had planned late last year to beef up programs dealing with substance abuse, mentally ill inmates and work force development.

Those plans were dropped when the inmate population began rising more quickly than expected. A system equipped to handle about 2,400 inmates daily is now expected to deal with about 2,700 in 2006, according to the budget report.

See earlier Grits coverage of overincarceration at county jails in Travis, Tarrant and Harris counties.

Public safety in border towns: Bad rap or bad news?

Note to Mexican border towns: Bad cops are bad for tourism.

In Reynosa, a border town of up to a million people across the Rio Grande from McAllen, TX, business leaders say their community is getting a bad rap because of drug-related violence upstream. Reports the McAllen Monitor:

The argument Reynosa’s business community continually propounds is that while the drug cartels are violent, their targets are people who affect their business, whether it is a trafficker who steals from a load or a police officer trying to crack down — not tourists.

"They’re doing bad things, but if you’re just here to have dinner, you’re not going to have a problem," [business leader Cesar] Martinez said. "I think a lot of the problem’s with the media. They make it out like we live in a terrible town, but that’s not the case. … Look at everyone walking out on the street. Would they be out walking around if it was so dangerous? We have problems, but so does everyone."

Personally, I love Mexico and I'd hate to contribute wrongfully to anyone's decision not to visit. IMO, everyone should. What's more, it's probably true the drug runners have no reason to target tourists, but that ignores a harsher reality: Who tourists, particularly women, perhaps should fear more on the border are cops.

It's just a flat-out falsehood to claim that the border's bad rap stems solely from confusion with problems in Nuevo Laredo, where a third of police force was sacked this spring for corruption. That's not to say there aren't many heroic Mexican cops actively fighting the bad guys, but police corruption is widespread. Officers in Juarez have been implicated in kidnapping and murdering possibly hundreds of women, including US tourists. In Reynosa, a police officer allegedly assassinated a prominent local businessman in December 2003. In 2004, 26 Reynosa police officers were suspended and fired and 12 were indicted for conducting robberies and even rape against US tourists. Again, reported the Monitor:

These actions follow[ed] the resignation of former [Reynosa] police director Carlos Hernandez Chaires on Oct. 6 and the termination of his second-incommand, José Garcia Rangel, who had barricaded himself in his office after being asked to step down by Reynosa city officials Oct. 5.

Seven of the nine complaints [from US citizens] involved police demanding money from tourists, usually on their way out the city’s red light district, according to Naland. But included in this round of charges was a police officer accused of rape and another charged with aiding the kidnappers of an American man, who was held for five days while his bank account was emptied via ATM withdrawals.

So even if it's true that drug runners aren't targeting tourists, one might fear the police just as much, it seems, when visiting Reynosa and other border towns.

That doesn't mean you should avoid the border, or Mexico. Most folks will be just fine. Go. Have fun. Be careful. Just don't trust the cops.

All hell breaking loose in Mexico

More terrible news from Mexico, where violent cartels are openly battling the government and one another for access to markets fulfilling the seemingly bottomless American demand for illegal drugs.

Drug-related violence is spreading far beyond the border. Troops were sent to patrol resort-town Acapulco recently after a spate of police-officer killings, and Saturday the civilian overseer of the police force in Michoacan, a coastal state in central Mexico, was assassinated in a crowded restaruant.

The Fox government appears to be doing what it can to resolve the Sysyphian dilemma with brute force, but access to vast profits from the drug trade make the cartels powerful, well-armed foes. After 46,000 drug arrests in Mexico as part of a full-blown crackdown, the supply coming into the United States hasn't lessened. It likely won't. The source of the problem is US demand, without which there would be no market for drug suppliers. That's beyond Fox's control: America's addiction problems can't be fixed from the southern side of the Rio Grande.

God help Mexico. It seems like nobody else is going to.

Texas growers legally sell 1.9 million peyote buttons each year

Who'da thunk? From the Seattle Times:

The Texas Department of Public Safety has licensed peyote distributors since the mid-1970s, when the number in the state peaked at 27. It dwindled to four last year. State records show that only three distributors have harvested and sold peyote so far this year.

For the past five years, an average of almost 1.9 million peyote buttons have been sold annually, according to state records.

Even so, the industry is in trouble. The number of producers is dwindling, it's becoming harder to lease ranch space, and they're overharvesting a limited supply source. Nearly 2 million buttons per year is a good-sized market. Maybe Governor Perry can cough up some cash for the peyote industry from Texas' Enterprise Fund.

Federal immigration prosecutions: A colossal waste

More evidence that the massive spike in immigration prosecutions in Texas' southern district (based in Houston - the number of cases increased 345% in just one year) is putting enormous strains on the system. Reports the Houston Chronicle:

"It's put an incredible strain (on attorneys). We are still providing effective assistance, but we are burning people out," said Marjorie Meyers, who heads the federal Public Defenders Office in Houston. ...

Public defenders in Brownsville, Laredo and McAllen handled 8,482 misdemeanor immigration cases in fiscal 2003, another 15,357 in 2004 and 7,199 through August of this year, Meyers said.

The government, Meyers said, is wasting resources on prosecutions of immigrants coming to reunite with family or to seek employment.

"We're putting our finger in a dike that's going to break, and we're certainly not focused on people who are going to harm our country," Meyers said.

That's exactly right - an immigration policy focused on prosecuting economic refugees makes America less safe. Indeed, the equation of all illegal immigrants with criminal lawbreakers is a debate over formalisms that confuses the real issues affecting public safety. Prosecuting so many immigration cases only drives undocumented workers deeper underground. But the more serious public safety threats occur when enormous segments of the population a) have no legitimate identification, b) have no address or personal information registered with the government, and c) are afraid to contact authorities to report violent criminal or terrorist threats.

That allows the creation of a criminal class to prey on people who mostly won't report them. Plus, in the event of catastrophe it means the government won't have the first clue how to find everyone or make sure, for example, that flood victims are evacuated and cared for, bomb victims are identified, or infected bioterrorism victims receive treatment before they transmit diseases to others.

The real dangers from illegal immigration stem from the unintended consequences of lack of documentation and integration into the economy and public life. These prosecutions make those problems worse, not better.

7 million nationwide under criminal justice control

Almost 7 million Americans presently live under control of the criminal justice system. The Conservative Voice reports (9-16) that one in 32 Americans is incarcerated, on probation, or on parole. In Texas, that number is about one person in 20.

Nifty research trick: Workaround for limited Google blog search

Okay, this is a little annoying. When Google changed their search format on Blogger (top left) to allow you to search all blogs in addition to just the Blogger account you're on, they somehow changed the search algorithm to give very limited results from internal blog searches. For example, a search on Grits for the phrase "drug task force" yields just 22 items, a fraction of what I've written.

That's perturbing, because one of the most important uses for Grits to me is archiving information in a searchable format from which I (and others, but hey, do you think I'm doing this for you?!) can easily retrieve it.

There's an easy solution to get a full site search on a Blogger-based blog, though: Google's "site:" function. To search narrowly on any website, go to www.google.com and type in:

search terms site:blogname.blogspot.com

So, for example, to search on Grits for information about drug task forces, you would type:

"drug task force site:gritsforbreakfast.blogspot.com"

... which gives you these comprehensive search results. That trick works not just on blogspot sites, but for searching any specific website. Happy searching.

Byrne money pays for non-task force projects

Texas drug task forces soak up a lot of federal funds needed for other important programs, but maybe that's starting to change. Historically, about 85-90 percent of Texas' block grant funding from the federal Byrne Memorial Justice Assistance Grant fund went to pay for drug task forces like the ones in Tulia and Hearne.

Now that about half of Texas' task forces have gone under (140 Texas counties don't participate in one anymore), the Governor has begun spending that money on more productive crimefighting approaches, including homeland security improvements, drug treatment, better equipment, training and technical assistance, public education, and combating child abuse.

It's about time Texas quit throwing good money after bad. Byrne-funded drug task forces are a failed strategy. The money spent on them could be better used for more effective crime fighting approaches.

Why do innocent people go to prison?

Why do innocent people go to prison?

Following a study published in the journal Science analyzing reasons for false convictions, columnist Rick Casey proposes this test for Houston police and prosecutors in this morning's Houston Chronicle:

"An analysis was done of 86 criminal convictions that DNA evidence later found to be wrong. Please rank the factors most often found to have contributed to the wrongful convictions:

•Incompetent defense lawyers.
•Police misconduct.
•Eyewitness errors.
•False testimony by forensic scientists.
•Prosecutorial misconduct.
•False confessions.
•Errors in scientific testing.
•False testimony by lay witnesses.
•Dishonest informants.

"If you ranked false confessions last, you are right. But did you guess 17 percent of the cases, nearly one in five, featured false confessions? That percentage tied with false testimony by lay witnesses.

"If you ranked eyewitness errors first, you were also right. Erroneous eyewitness accounts showed up in a stunning 71 percent of these cases. ...

"[F]ully 63 percent of the cases featured errors of forensic science. What's more, in 27 percent of the cases forensic scientists gave false or misleading testimony."

So, according to this study, misidentification by witnesses and bad forensic science are the most common reasons innocent people go to prison. Requiring corroboration for eyewitnesses' testimony (when they had no prior relationship with the defendant) would go a long way toward resolving the former, but in an era when even fingerprint evidence is coming under fire, the latter will require expensive, substantive reforms.

Every one of these guys should have been fired

The entire Comanche, TX police department called in sick for two days last week to protest the city's decision not to let them take their police cars home at the end of their shift. This hardball labor stratagem is known as the "blue flu," essentially a shakedown of city officials that intentionally leaves the public without police protection as a coercive labor tactic. The chief sided with his officers against the city, ridiculously announcing he was "proud" of them for returning. That's setting the bar pretty low, when you get kudos just for showing up for work ... sometimes.

If the city caves in here, they'll have more or less lost control of their department. Who's running this rodeo, anyway?

What is restorative justice?: The TPPF report

Can "restorative justice" principles reduce crime and incarceration rates in Texas?

That's the claim of a new report entitled "Restorative Justice in Texas," written by Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, a state-level conservative think tank based in San Antonio. I posted the link when it was released, but wanted to adumbrate Levin's arguments in more detail.

Restorative Justice emphasizes making the victim whole rather than punishing the offender for punishment's sake. Levin emphasized the "biblical and tribal roots" of restorative justice, pointing out that the tradition of state-initiated prosecution is a relatively recent phenomenon in human history:

The principles of restorative justice are deeply embedded in all of the world’s major religious traditions. The Vedic civilization (6000-2000 B.C.) of the Hindus believed that reincarnation flows from penance, which must be performed after every sin is committed. Islamic law requires that a murderer compensate the victim’s family and dictates that the victim’s family judges the crime and decides a proper punishment with the help of an individual in the commu-nity who is an expert in Islamic law. In Christianity, the institutionalization of restorative justice occurred in the late sixth century as Celtic monks developed a new approach of reconciliation with God that involved personal penance coupled with confession. Buddhist thought is encapsulated by the Dalai Lama’s statement that the “more evil the crime, the greater the opportunity for grace to inspire a transformative will to resist tyranny with compassion.”

Restorative justice also has deep roots in indigenous justice systems from various cultures, in-cluding American Indian, Australian Aboriginal, and Eskimo traditions. Sentencing circles, an informal process through which a case is heard and the punishment is decided through community dialogue and consensus, are rooted in the traditional peacemaking rituals of both Native Canadians and Native Americans.

Levin dates the shift from restorative to punitive criminal justice practices to the rise of William the Conqueror and the establishment of the British monarchy in the 11th century. William "decided that expanding the state's involvement in criminal law could help strengthen the nobility's fragile reign over the people," so he "made most individual acts committed against a person or his property offenses against the 'king's peace' or the crown rather than private matters to be resolved by the affected parties."

In the American colonies, similarly, "criminal prosecutions were primarily private matters, as victims sought retribution or restitution from offenders." Colonial courts "were far more informal than those today," he said, with case outcomes resembling those in modern civil courts more than criminal prosecutions.

He even finds traces of restorative justice trends in Texas' earliest history:

In 1821, Stephen F. Austin instituted Instructions and Regulations for the Alcaldes, relying largely on English common law. Under these regulations, murder was punishable by hanging. Other crimes against the person like battery and abuse were punishable by a fine not to exceed $100 and incarceration with hard labor on public works for three months. Additionally, in what might be considered an early form of restitution, those found guilty of battery, abuse, or ill treatment were made liable for monetary damages in a civil suit brought by the injured party. Austin’s guidelines took a restorative approach to crimes against property such as robbery and larceny making them punishable by a fine of three times the fair market value of the stolen property and incarceration at hard labor on public works. Austin’s guidelines also authorized citizens to use force to apprehend criminal wrongdoers by making a citizen’s arrest and delivering the suspect into the custody of the alcalde.

Both the 1845 and 1876 Texas Constitutions provided for trial by jury and the creation of local district attorneys in charge of bringing prosecutions. Texas built its first state penitentiary in 1848 and enacted the Penal Code in 1856, further laying the groundwork for the state’s current criminal justice system.

I was especially intrigued to notice the early use in Texas of triple restitution as punishment for theft. That concept dates all the way back to Mosaic law in the Bible, which mandated thieves pay their victims double restitution. To this day, in Texas, if you or I steal something as individuals we can go to jail, but if a corporation steals something, the crimnal penalty is still double restitution.

Levin provided a rundown of programs he places under the rubric of "restorative justice," recommending their use be expanded:

• Restitution-based programs (including 14 "restitution centers" operated by the state),
• Victims rights and services, including participation in trials and sentencing decisions,
• Use of stronger probation and specialized courts to supervise offenders outside of prison, including drug courts to treat addiction, a root cause of crime,
• Victim-offender interaction programs, and
• Religious prison ministries: Specifically, he's a fan a Chuck Colson's InnerChange Freedom Initiative.
  

The restitution programs he examined appear to be especially effective: "These centers are residential facilities where offenders particiapte in activities designed to assist them in paying back individual victims of crime and society as a whole. ... Residents work full time, perform community service restitution, and attend educational and rehabilitative programs," though the total capacity in all 14 facilities is just 737 inmates. Moreover, "A TDCJ study indicates that restitution centers reduce recidivism, as only 21.3 percent of residents discharged from restitution centers were ultimately rearrested."

Besides reducing crime, these programs also reduce costs. Restitution centers are one of five types of "community corrections facilities" in Texas. In 2001, Levin reported, "it cost the state an average of $7,957 to place an offender in a community corrections facility, which is some $32,581 less than it costs to send an offender to prison."

I'm not a big fan of Colson's program. Leaving aside for a moment issues of state-sponsored religious instruction, most of its claimed reduction in recidivism stems from cherrypicking inmates who are less likely to re-offend, not from the rehabilitative genius of the program.

There's a lot more to Levin's study, and those interested should definitely read the whole thing; it contains a lot of detail and extensive footnotes -- this brief summary hardly does it justice. I don't agree with all of it, by any stretch, but it's highly significant, I think, that conservatives in Texas are rethinking criminal justice policies at this level.

UPDATE, Levin replies via email: "I have a few very minor clarifications. TPPF is now based in Austin - the entire operation moved here from San Antonio. Also, I did note in my report that the sectarian nature of Colson's program makes it less well-suited to being expanded as compared to Bridges to Life, which is ecumenical. Consequently, I only recommended any state role in the expansion of Bridges to Life."

Austin march against the Minutemen

In Austin, activists are using the annual parade celebrating Mexican Independence Day to protest anti-immigrant vigilante groups like the Minutemen. Here's some information about the event I received via email:

Embrace your Culture, Fight Racism (Minutemen), & Defend the Future of our Children

6th Annual Mexican Independence Day Parade

Stand up against racism and ignorance. The arrival of anti-immigrant vigilante groups like the Minutemen threatens to provoke more senseless violence from these fringe groups in Texas. March against prejudice, anti-immigrant groups, and racism; defend the future of our children. Our silence will continue to promote injustice if we fail to take action. We expect to see you in Austin.

• Date: Saturday, September 17, 2005
• March Time: 4:00 pm - 5:30 pm
• March Location: Riverside and Congress
• Rally Time: 5:30 pm -7:00 pm
• Rally Location: State Capitol Building in Austin, Texas

Join the Texas United Latino Artists, TCJC, UFW, NAACP, ACLU, CIME, MALDEF, CDI-Dallas, UT Longhorn League of United Latin American Citizens (LULAC) Council, Jóvenes Inmigrantes por un Futuro Mejor de UT Austin, and grass roots groups from across the Lone Star State for a march to the south steps of the state Capitol.

Prison sex slave case begins Monday in Wichita Falls

More from ACLU.

Does Tarrant County need a public defender?

Does Tarrant County need a Public Defender office? It seems like it to me, but a new draft consultants' report shoots down the idea.

In 2001, Texas passed the Fair Defense Act (SB 7) setting standards for appointment of attorneys for indigent defendants, spurring a rise in defense costs statewide. But Tarrant (Fort Worth is the county seat) witnessed higher-than-normal increases, prompting the county to commission a study (pdf) by the National Center for State Courts to identify why. (Grits obtained the document under the Texas Public Information Act.) Here's the crux of the problem:

During the first three years of its implementation ... the cost for appointed counsel in Tarrant County rose significantly. Specificaly, the county's expenditures for appointed counsel incresed by 87% between FY 2001, prior to the implementation of SB 7, and FY 2004 ($5,736,459 in 2001, and $10,764,443 in FY04). During the same period, statewide expenditures for court-apponted counsel rose by 40%.

Those extra costs mostly stem from the new system, not higher caseloads. Despite an 87% cost increase, over the same period "the number of cases in which court appointed counsel is assigned increased by approximately 13 percent."

Tarrant County appoints private attorneys through a decentralized system at 37 different locations. Since passage of SB 7, judges use a "wheel" system for assignments rather than their own discretion. The consultant proposed centralizing the process in a single spot -- a strategy that may have merit but which also suffers from tremendous logistical barriers and startup costs.

They rejected another suggestion, not because it's unworkable, but because stakeholders didn't like it: "Satisfaction with the status quo is a strong impediment to forming a public defenders office," the consultants wrote.

If Tarrant really wanted to control indigent defense costs, though, that'd be the way to go. In Dallas, which has a public defender office handling half the indigent cases, defense costs increased just 10.6 percent over the same three years that Tarrant's went up 87%. Maybe folks in Fort Worth could learn something from their neighbor next door.

Statewide, Dallas, Colorado, Wichita, Webb, and El Paso counties presently have public defenders. Travis and Cameron counties use PDs only for juvenile cases. Reported the consultant, "The costs of indigent defense have been stated at $386 per client for counties with a Public Defender, and $422 for counties without."

Questions have been raised whether the Dallas office is underfunded and understaffed, they report (it handles half the county's indigent cases at 1/3 the total cost), plus "annual wage increases and the need for additional staff as caseloads increase are a reality for established governmental entities." However, "In a large urban jurisdiction there are certainly economies of scale that could keep the cost of indigent defense lower than using court appointed counsel."

The consultants announced that "Nothing in the review of the Tarrant County criminal justice system suggests the time is appropriate to establish a county public defender office," but that statement ignores the financial arguments they'd just laid out. Moreover, they seem to view a public defender office as the main possible solution to rising indigent defense costs if the county decides to get serious: "If the county continues to experience escalating costs for indigent defense that are deemed unacceptable, a proper planning mechanism should be established to assess the feasibility of a public defender system."

If they were really clever, Tarrant officials would begin "proper planning" now. If they wait three more years and indigent defense costs double again, taxpayers will be wondering why they didn't act sooner.

For more information, see the Texas Task Force on Indigent Defense's "Blueprint for Creating a Public Defender Office in Texas."

See also from Grits: Bail policies juice Tarrant jail overcrowding.

Dallas County Jail is bad for your health

Via Injustice Anywhere, the Dallas Observer looks at jail healthcare.

Bail policies juice Tarrant jail overcrowding

Like most local lockups in Texas, the Tarrant County Jail is overcrowded. But a draft report by the National Center for State Courts' consulting service aimed at finding solutions, obtained by Grits under the Public Information Act, ignored the key questions about how local bail policies contribute to jail overcrowding. (UPDATE: Report and district clerk's response/comments linked here)

As in Harris County, much of Tarrant's overincarceration crisis appears to be a self-inflicted wound. Harris' jail overcrowding largely stems from overuse of cash and surety bonds by local judges. In 1994, according to a recent consultant's report, Harris County released a whopping 97% of defendants on "personal bond" (essentially a promise to appear) while today that number has declined to 39% (see the first chart in this post).

In Tarrant County, by contrast, just 16% of defendants are released on personal bond. The rest must pay to be released, or sit in jail awaiting trial. That means 84% of defendants' cases are being processed through cash bonds or bail bondsmen, not the county Pretrial Services division.

Though consultants didn't provide enough hard data to tell for sure, it's likely Tarrant's jail overcrowding crisis could be mostly resolved just by increasing the proportion of defendants eligible for personal bond to current Harris County levels. Arguably, even higher rates of personal-bond-release could be achieved without harming public safety.

In most places, Pretrial Services assess defendants to determine what risks they pose and whether release on personal bond is warranted. In Tarrant County, Pretrial Services doesn't even see most defendants. "The lack of reliable information regarding defendants" can lead to "unnecessary detention of defendants who pose little or no significant risk of nonappearance or dangerousness to the community," the consultants wrote. "[E]xperiences in other jurisdictions suggest that with appropriate systems in place to remind defendants of upcoming court dates, the proportion of defendants released on personal bonds in Tarrant county could be increased without having a negative impact on FTA [failure-to-appear] rates or community safety."

In a bizarre twist, though, the consultants claimed it would be cheaper for the county to rely more on bail bondsmen than on Pretrial Services. That's because their analysis only looked at the narrow cost of supervising defendants -- not the overall cost including paying for incarceration pending trial, or buildng a new $80 million jail. "If Tarrant County's goal relative to the pretrial release of defendants is solely driven by fiscal concerns," they wrote, "then clearly Pretrial Services should be abolished and the county should rely exclusively on private bonding agents."

But that's absurd. Relying on bail bondsmen may let the Pretrial Services' budget remain low, but the extra costs for incarcerating people who can't make bail more than surpass that meager sum. Indeed, a few paragraphs down from the above ridiculous comment, consultants mention that increased use of Pretrial Services "could expedite the release of individuals on personal bond, thereby reducing the need to occupy precious jail space with low-risk defendants." If costs for "precious jail space" are included, Pretrial Services starts to look like a really good deal.

The solution to Tarrant's jail overcrowding problem is simple, even if the consultants didn't have the cojones to propose it: Allow Pretrial Services to screen every defendant, and start to release those on personal bond who pose low risks of flight and future dangerousness.

See also: Tarrant County Bail Politics Keeps Jail Full

Hay butts: The web is so cool

I wish the government compiled crib sheets of drug slang terms and distributed them to the public when I needed the information back in junior high. It took years to learn the terminology.

Even now, a "hay butt" is a joint? That's a new one.

Texas' new carry law: What does it mean?

UPDATE (May 30, 2007): New legislation clarified this law to make clear who can carry a gun in their car.

So can law-abiding Texans carry a loaded firearm in their personal vehicles now, or not?

With the passage of HB 823 (Keel/Hinojosa) into law September 1, legislators and the National Rifle Association believed they'd finally resolved a longstanding dispute that for years turned thousands of legal gun owners into law enforcement targets. Texas law lets drivers carry a weapon in their car when they're "traveling," but the definition of traveling has never been legally settled.

So the Legislature passed HB 823 creating a "presumption" that the driver is "traveling" unless one of five things is true: (a) the weapon is in plain view, (b) the defendant is a convicted felon, (c) it's a public, not a personal vehicle, (d) the defendant committed a Class B misdemeanor or worse, or (e) the defendant is a gang-banger. (Conflict alert: I testified at the hearings in both chambers in favor of the bill on behalf of ACLU of Texas.)

The new law seemed pretty straight forward. If the gun is legal, you're not a crook, you're driving your own car, and if the gun is stowed (i.e., you're not driving around with it laying on the passenger seat like an idiot), then you can carry a gun in your car when you're driving. At least, that's what legislators thought they'd passed.

Nearly immediately, though, prosecutors and police began to say they wouldn't enforce the new law, or, rather, would continue to enforce the old one. Harris County DA Chuck Rosenthal led the charge, announcing instructions to officers to continue to make arrests for UCW (unlawfully carrying a weapon) just like they always had.

On the District Attorney Association's public user forums, a discussion occurred that gives a good idea of what the arguments will ultimately look like when this plays out in court. Several prosecutors are looking for a way to agree with Mr. Rosenthal. A Department of Public Safety lawyer announced she thought the old court cases on "traveling" were still applicable, while another from Columbus announced:

I am giving the officers in my county the following instructions:

A person is not a traveler unless he is on an overnight trip, still in the course of the journey, and has not reached his destination.

That's simply ignoring the new law. I wonder what prosecutors are telling officers in other jurisdictions? Fortunately, cooler heads emerged in the DA's discussion forum. After that interpretation was challenged, an attorney with Texas Parks and Wildlife (which oversees Texas game wardens) weighed in with this analysis:

As I read it, the state must be able to prove beyond a reasonable doubt at every UCW trial one of the following: Defendant is a gang member, was breaking a law, was prohibited from possessing a gun, was not in a private vehicle, or was carrying a handgun in plain view. The presumption cannot be rebutted by showing the [driver] was not really "traveling." What matters is whether the state can prove (or disprove, as applicable) one of those 5 facts beyond a reasonable doubt. I don't see any other way and have advised TPWD officers accordingly. ...

On the surface the new law is worded as a presumption, but in substance at least one of the 5 facts must be treated as an element of the offense which the state must prove at trial (or disprove, depending on which one of the 5 is chosen). ...

For what it's worth, I have no reason to believe this new law will increase crime. It may even have a deterrent effect as criminals realize that more honest citizens will be armed in more situations.

That's how legislators understood the bill when it was debated and passed. I predict, at the end of the day, it's how the courts will interpret it (though I'm no attorney and could certainly be wrong). Bill author Terry Keel issued a statement on the controversy, siding with the Parks and Wildlife intepretation of the statute:

“HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang,” said the bill’s primary author, Rep. Terry Keel, R-Austin.

“In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,” Keel said.

“There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling” where the citizen is cloaked with the presumption per the terms of the new statute,” he said.

I'll bet that makes Chuck Rosenthal apoplectic. Ironically, now that Keel's running for a seat on the state Court of Criminal Appeals, there's a good chance he'll actually be a sitting justice by the time any case reaches the highest levels. Having the bill author seated on the bench might give justices special insight, one could imagine, into the specifics of "legislative intent."

UPDATE: Of Arms and the Law wonders if police officers who make arrests without discovering evidence voiding the presumption might open themselves up to wrongful arrest suits. Injustice Anywhere thinks Chuck Rosenthal's on a power trip. The Waco Herald-Tribune (9-16) covered the controversy. There's a good discussion at Texas Concealed Handgun of San Antonio.

A prison guard's aversion to snitches ...

From Patriotic Rants, read a former prison guard's tale of guarding a snitch in federal witness protection, written by a California parole officer, blogger, and Grits reader. While writer J.J. King, certainly no liberal softy, says he understands snitches must be used, he declares:

I have an old prison guard's aversion to snitches. My feeling on the subject is that when one makes the decision to violate decent society's mores and break the law for a living, one should at least have the decency to embrace "the code".

The code is simple: stand up crooks don't tell on their partners, or any other criminals for that matter. This is beside the point, and it is just my opinion, but the prison system of old was a much safer place when inmates practiced the code.

Read the whole thing to learn how snitching can endanger more than just the snitch. BTW, see also King's terrific Katrina-inspired post questioning whether California has adequate evacuation plans in place in case the prison-laden Tulare Basin floods -- areas near the prisons flooded in 1997.

Killing Frances Newton

I don't oppose the death penalty for Frances Newton, who is scheduled to die tomorrow night, because I believe she didn't kill her husband and children. I think we can't know for sure, and that's the point. I don't trust Texas' system not to make mistakes. Actually, from what I've seen, occasional mistakes, often big ones, seem nearly inevitable, and certainly constant.

Newton's dead husband's parents say there's enough doubt to stop the execution. How in heaven's name can the government be entitled to more terrible retribution than they desire?

That's the stuff that bugs me. Sure, terrible things happen in the world, and in theory there are folks who need killing. But do you trust Texas' criminal justice system to pick the right ones?

FBI violates snitch rules, says Inspector General

Via Talk Left, the New York Times announces a just-released audit from the Office of the Inspector General revealing that FBI agents "frequently violate" rules regarding undercover activities and confidential informant use. The whole thing is a fat 300+ pages, but the link is here (pdf). Reported the Times:

A review of 120 confidential informant files from FBI offices around the country found violations in 104 cases, or 87 percent, Inspector General Glenn A. Fine said. His 301-page report, parts of which were blacked out, examined FBI compliance with rules that govern most criminal investigations.

The report said agents failed to assess informants' suitability or get permission for informants to engage in activity that otherwise would be illegal. Agents did not convey proper instructions or tell prosecutors when informants had committed crimes that were not authorized by their FBI handlers, Fine said.

Regular readers know I'm shocked, shocked, SHOCKED, to hear that. I'm not sure I'll make it through the whole thing, but I printed out the chapter on snitches.

UPDATE: See Slate's coverage. And more from Federal Crimes Blog.

What can happen when you snitch?

Lots can happen when you decide to become a confidential informant, i.e., a "snitch" for law enforcement. Sometimes snitching gives criminals protection to continue their crimes. Cops might steal the money you were supposed to be paid. Or, the cop might become your informant. Perhaps you'll help bust a ring of rogue baking-soda dealers. You might get the crap beat out of you. Maybe the DA will get you to snitch against your own lawyers. Or maybe you'll get a chance to testify against the Sheriff's son.

John Roberts & the Fourth Amendment: Judicial activism to allow police searches

Would President Bush's nominee for US Supreme Court Chief Justice, John Roberts, defend or detract from the people's right to be free from unreasonable searches and seizures, supposedly guaranteed in the Bill of Rights by the Fourth Amendment? The early tea-leaf reading doesn't look good.

Professor Thomas Clancy offers up this analysis of the eight search and seizure cases decided by Roberts during his brief tenure on the D.C. Circuit Court of Appeals. He upheld the government's search or seizure every time. Most famously, Roberts upheld the arrest, handcuffing and booking into jail of a 12-year old girl by the Washington D.C. transit police for the heinous crime of eating a single french fry on the train platform (basing his decision, incidentally, on the Texas case, Atwater v. City of Lago Vista).

With the caveat that examining just eight cases hardly addresses the full range of Fourth Amendment issues Roberts might face on the court, Clancy offers the following general observations: "Roberts does not have a high standard for finding probable cause. Nor does his view of articulable suspicion ... appear to be particularly demanding." That's not very encouraging.

Clancy thinks many judges and academicians would find Roberts' probable cause standard "set too low," but he thinks Roberts' position is more or less "in tune with the current Supreme Court analysis." I don't feel too reassured, though, since the Fourth Amendment has been more or less gutted in recent years by a Supreme Court anxious to clear the way for nearly unlimited police searches.

Perhaps most distressing, Roberts seems prepared to engage in judicial activism to maximally allow police latitude to search. "Judge Roberts demonstrated a willingness to depart from the lower court's reasoning in [two cases] to uphold the search," Clancy wrote. "Many courts would not engage in such analysis, finding instead that the claim is unpreserved." In other words, Roberts imposed his own judgment over that of the trial judge, even though the prosecution never made the arguments on which he based his decision.

Indeed, Roberts appears to feel unbound by the judgments of those beneath him in the system, but is willing to impose his own views, at least if they support more searching. In United States v. Holmes, Clancy says Roberts substituted his own judgement for the objective belief of the peace officer at the scene in order to justify a search -- the officer found a drug scale during a "Terry frisk," which is supposed to be a non-invasive search to check for weapons.

Even though the officer in Holmes believed the square object was a scale, not a weapon, Roberts ruled it "could have been another type of weapon, a box cutter, for example," so a full-blown search was justified. Writes Clancy, "Such speculative reasoning is inconsistent with the proper scope of a frisk; to hold otherwise permits general exploratory searches, effectively obliterating the distinction between the limited intrusion authorized by a Terry frisk and a search." That's pretty disturbing -- the line was already awfully blurry.

The notorious french fry case, says Clancy, raises questions of how Roberts might interpret the Fourth Amendment's reasonableness requirement. One could view Roberts decision as indicative that he "would join Justices Scalia and Thomas" in viewing the definition of reasonableness as hinging on the state of US common law in 1791, a fairly regressive standard that Clancy says "is, in my view, incorrect and unworkable." The tea leaves aren't clear, though, and Clancy also thinks Roberts might look to the "essential purpose" of the Fourth Amendment, eschewing the current competing standards.

That's an optimistic view. Given Roberts' pro-search positions in every case that came before him, it seems unlikely that he'd throw his weight on the court behind new restrictions on searches. Janice Rogers Brown, he ain't.

Via CrimProf blog UPDATE: Commenters at Reason Hit and Run and Last Night in Little Rock at Talk Left had additional comments.

Restorative Justice in Texas

The conservative Texas Public Policy Foundation's Center for Effective Justice has published a new report, "Restorative Justice in Texas: Past, Present and Future," by Director Marc Levin. According to Levin, restorative justice is about "transforming, not simply warehousing, offenders through initiatives such as victim-offender interaction programs that emphasize accountability and penance." I haven't read it all yet, but wanted to at least post the link (pdf). Here's a taste, though, of the kind of thinking in the report that you might not have heard from a conservative think tank in Texas a decade ago:

Ultimately, the fact that Texas has 150,000 prisoners and 450,000 probationers will continue to pose a significant challenge to the implementation of restorative justice initiatives. Through reductions in these totals, more resources can be made available for innovative programs and these programs can therefore reach a greater percentage of offenders. Also, by reducing the number of offenders on probation, the remaining offenders can be more closely supervised by probation officers to ensure they are meeting conditions, such as attending therapy and paying restitution.

Fewer people in prison and on probation -- a conservative agenda item? That's a welcome shift. 

Probation 'harsher' than prison? Quick hits from a busy week

The site's seen its highest traffic ever this week after Instapundit and National Review Online linked to Grits' post on the DEA's nostalgia for alcohol prohibition. That's pretty fun -- who'da thought I was National Review's kind of guy? (BTW, here's what an Instapundit hit does to your Labor Day traffic.)

Otherwise, blogging will be on the light side the next few days, but here's a few quick hits that hopefully will tide you over, gentle readers, until I can shorten the stack on my desk:

Probation "harsher" than prison? Austin US District Judge Lee Yeakel sentenced the computer hacker who stole thousands of social security numbers from the University of Texas to five years probation, paying $170K restitution, and banned his use of the Internet without permisssion from his probation officer. Federal sentencing guidelines called for a sentence of 15-21 months, but Yeakel declared the sentence "harsher" than prison. Was it? I'm curious as to whether Grits' readers think that's true?

Nuther Ron Mock client nears execution: Frances Newton is scheduled to die next week, and the thought that she might be innocent, convicted on possibly faulty evidence from a Houston crime lab, makes me sick to my stomach. She had one of the worst lawyers of all time. The National Coalition to Abolish the Death Penalty sent out an action alert to plead with the Governor and the Board of Pardons and Paroles to spare her life.

Public defenders in Paris? In Paris (that's northeast Texas, not France), Lamar County officials are considering setting up a public defender's office in response to rising indigent defense costs and a declining number of attorneys willing to take court-appointed cases. That's probably a smart move.

The sound of the other shoe dropping: It appears as though Texas' anti-abortion lobby's recent string of legislative successes has cleared the way to prosecuting doctors as murderers for performing abortions withut parental consent, see Injustice Anywhere and Doc Berman's accounts. It's like a pro-life zealot's view of doctors was accidentally codified. At least, I think it was an accident. One of our yahoo Texas DA's, you can be sure, will file that moronic case now that they've thought of it.

Okay, 45,000 people couldn't have gotten high, but we could have charged that many with possession. Legal Assistance looked at Grits' post on DEA testilying about meth weights and, in response, walks through Texas law on whether drugs must be possessed in "usable" quantities to be illegal. Short answer: Pot, yes, powder, no.

For you history buffs: See Lufkin Daily News publisher Gary Borders' story of a Reconstruction-era Texas lawman, Columbus Hazlett, who was nearly lynched as a boy for his family's pro-union sympathies. Later, as a state policeman, he was jailed after he and another officer threatened a judge and shot a deputy sent to arrest them. Hazlett was killed after breaking out of jail in Nacogdoches. As an aside, I sure didn't know Angelina County (Lufkin) actually voted against seccession, the only East Texas county to do so.

Local marijuana initiatives: Liberty Index summarizes the various local marijuana reform initiatives around the country. Good blogging - I'd not seen that information compiled elsewhere.

Fourth Amendment lore: Here's a good, brief primer by Orin Kerr on the history of Fourth Amendment case law, via CrimProf blog. (The Fourth Amendment protects people and their property from unreasonable searches and seizures, at least in theory.) I often forget, though, that the Fourth amendment didn't apply to state and local law enforcement until after the 1961 decision in Mapp vs. Ohio. I can only imagine what cops got away with before that.

No Fourth Amendment for you! Ironically, given his historical homage to the Fourth Amendment, Orin Kerr thinks Janice Rogers Brown won't be nominated as a US Supreme Court Justice precisely because she respects and defends the Fourth Amendment when deciding search and seizure cases (obviously a disqualifying attribute for a Supreme Court Justice). Others chimed in; Doc rounds up the links.

No panties, no visit: Loretta Nall's recounting of the Great Alabama Prison Panty Rebellion cracked me up. And pissed me off. She's a good writer. I suspect that was her goal.

Hate to see you go: Finally, farewell to Watching Justice, a much-needed DoJ watchdog project that's ending too soon.

Die spammers, die

After a massive wave of comment spam I've turned on word verification for comments on the site. Maybe it'll help. Sorry for any inconvenience, but, naturally, mostly for my own. :-)

As always, I appreciate commenters of any stripe, so long as you're not tryng to sell me Viagra or get me to play online poker.

DEA Nostalgic for Alcohol Prohibition?

The Drug Enforcement Agency pines away on its website for the good old days of alcohol Prohibtion, because it "worked"!

Consider the following brilliant piece of historiography appearing on the DEA's Just Think Twice website:

A word about prohibition: lots of you hear the argument that alcohol prohibition failed---so why are drugs still illegal? Prohibition did work. Alcohol consumption was reduced by almost 60% and incidents of liver cirrhosis and deaths from this disease dropped dramatically (Scientific American, 1996, by David Musto). Today, alcohol consumption is over three times greater than during the Prohibition years. Alcohol use is legal, except for kids under 21, and it causes major problems, especially in drunk driving accidents.

So the DEA thinks it'd be a good idea to reintroduce ALCOHOL prohibition? Does the Coors family know that?

Let's grant for the moment all their disputable fact assertions. If alcohol consumption under Prohibition was at 1/3 current rates, doesn't that mean that LOTS of Americans were consuming alcohol in defiance of the law? Wouldn't that mean banning booze didn't work any better than has drug prohibition?

Think about it: What if four out of ten beer drinkers today were suddenly labeled "criminals"? Would that "work"? Hell no.

With prisons already full, reinstating alcohol Prohibition would degenerate quickly into an irredeemable, absurdist chaos. Keeping booze legal and regulated restricts childrens' access, while nearly every American teenager knows where to buy pot (or knows someone who knows). Plus, alcohol-producers' revenue stream is heavily taxed and doesn't wind up supplying violent criminals, as happens now with the money Americans pay for illegal drugs. Renewing alcohol Prohibition would be a full-blown disaster from every perspective.

The brazenness and quantity of the DEA's lies are increasing, I think.

Last Chance in Texas

This book looks like a worthy read: A probation-officer-turned-reporter's account of life inside Texas' juvenile correctional facility in Giddings, focusing especially on kids going through a nationally reknowned treatment program for young violent offenders. See reviews here, here and here.

Will .0056 grams of meth get you "high"?

Time for a realism check on DEA testilying about drug weights in meth cases.

In Tyler last week, two newlyweds were sentenced to life in prison for possessing 255 grams of meth. A DEA agent testified at trial that 255 grams was enough to get 45,000 people "high" -- "If those people were lined up side by side, they would form a line from downtown Tyler to Bullard about 17 miles, he said."

Local media dutifully hyped the ridiculous claim. The lede in the local newspaper declared the couple was sentenced "for possessing enough Ice methamphetamine to get half of the population of Smith County high."

But is that true? That would mean that it only took .0056 of a gram -- or just over five one-thousandths of a gram -- for a person to get high on meth. By any measure, that's a big fat lie.

According to Wikipedia, "Methamphetamine is soluble in water; injection users usually dose 0.2 g in 3ml of water through a small needle." Addicts who snort meth or ingest it orally use more of the drug per dosage. But let's assume all of the couple's customers were injection drug users (and that the two addicts didn't intend to use any of the drug themselves.) At .2 grams per dose, that would mean 1,275 people could inject meth once from that stash, hardly enough to stretch from downtown Tyler to Loop 323, much less faraway Bullard.

Meth, like cocaine, is typically sold to individual users in single-gram quantities -- a person might be in possession of several grams of meth and still legitimately be in possession merely for "personal use." Ingesting orally or snorting the drug, a heavy meth using couple could run through that amount, I'd guess, in a matter of weeks, at most 2-3 months. The idea that 45,000 people could ever have partaken of such a small amount defies all common sense. But if the jury believed such nonsense, no wonder they considered these folks dangerous people who needed to be put away.

The worst part: this appears to be another instance of juries handing down severe punishments to folks who are basically small-timers, dealing mainly to support their rather pathetic addictions:

the woman, who had been using meth for more than four years, said she didn't care about anyone when she was on the drug. She admitted that she lied to police, but said she and Lopez had been clean since their arrests and would never do drugs again. Ms. Lane said she had received Christian counseling and said, crying, that now she has a clear head and is free.

One of the eight women on the jury cried throughout most of Ms. Lane's testimony.

Ms. Lane said she became so addicted to meth that she stopped smoking it and ate it instead. She admitted that meth has destroyed her life.

"I had the devil on my shoulder for a long time," she said.

The parents of the defendants testified that Lopez and Ms. Lane had good, normal childhoods.

This pair only had misdemeanors on their record before now. Public safety would have been best served if they'd gotten drug treatment and rehab, not lifetime incarceration. Why should taxpayers foot the bill for that unnecessary expense?

In this case, the answer appears to be, in part, because the DEA used scare tactics and grossly inaccurate statistics to mislead a jury about meth, and because prosecutors were willing to suborn those misstatements in order to secure convictions.

See also: Reason Online has more about the DEA overhyping meth statistics, via Meth Mouth. Follwing Reason, Pete at Drug War Rant breaks down more of the DEA's ridiculous meth stats here. Mark Kleiman had a good piece last month offering a reasoned look at America's meth problem, responding to this article in Slate by Jack Shafer.

New blogs, Tom vs. Monsanto

Say "Howdy" to three five new blogs: Justice and Drugs, Federal Crimes Blog, and the Texas-based Wretched of the Earth, written by two poverty lawyers (or is that impoverished lawyers?) in Dallas.

UPDATE: Legal Assistance is brand new, from a legal assistant in Houston. Texas Criminal Law is new to me, but has been around a couple of months; it has just a few posts.

Also, my college buddy Tom Philpott, Jr. over at Bitter Greens Gazette has Monsanto Corp. sending his blog cease and desist orders. See his reply. He must be doing something right at Bitter Greens. Perhaps you've heard the saying, "only a hit dog hollers"?

Snitch rules protect lying DEA agent

U.S. District Judge Charles Breyer would like someone to investigate whether an apparently mendacious DEA agent -- who sponsored a confidential informant the FBI fired for lying -- should be prosecuted for perjury in California's southern district. But no one will tell him who is looking into it. Ironically, the feds claim that, because of a ruling by Breyer's brother, U.S. Supreme Court Associate Justice Stephen Breyer, the Judge doesn't get to know. Law.com reports that doesn't sit well with the Justice's younger sibling:

"I understand separation of powers," [Judge Charles] Breyer said later in the hearing. "I also understand when perjury or what appears to be improper conduct appears to happen before the court."

The friction arose from Breyer's attempt to get prosecutors to investigate why DEA agent Dwayne Bareng gave conflicting testimony before invoking his Fifth Amendment right during cross examination on Aug. 16. Bareng had said he did not know why the FBI fired a key informant whom Bareng had later used in a drug investigation. He then said he did know -- it had been for lying -- before eventually taking the Fifth.

Barry Portman, the Northern District of California federal public defender, said last week that while he hopes the investigation will help defendants who face charges -- thanks to questionable snitches -- he's skeptical it will have much of an effect.

That's because of a 2002 U.S. Supreme Court decision authored by Breyer's older brother, Justice Stephen Breyer. Portman is planning to call a meeting of his deputies to discuss that issue this week.

Stephen Breyer's decision says prosecutors don't have to disclose compromising information about informants until after a defendant turns down a plea deal and opts to go to trial.

With those constraints in place, Charles Breyer was outspoken Tuesday on the problems presented by the DEA knowingly employing an informant fired by the FBI for lying.

"What bothers me in this case is accountability, as well as the initial offense," Charles Breyer said. "It appears to me there is a breakdown of accountability in this case."

That points up a key problem with the whole confidential informant system. As Prof. Alexandra Natapoff has argued, confidential informant agreements are essentially secret, informal plea bargains, but ones where the defendant has many fewer rights. No lawyers. No judicial oversight until late in the process, if ever. No in-writing guarantee the cop or prosecutor will hold up their end of the deal (Ask Anna Sage). No disclosure to the other side when the CI might be a witness in a case.

(Scandals stemming from secret, lying snitches in Dallas, Hearne and elsewhere inspired the Texas House to consider legislation this spring to require that prosecutors disclose snitch agreements 30 days before trial; HB 3151 passed out of the House Criminal Jurisprudence Committee but never received a vote on the House floor.)

After learning more about confidential informants this spring, I've come to believe the whole process is rife with abuse. At a minimum, police and prosecutors should be barred from entering into a CI agreement with possible defendants (I'm not talking here about "walk-ins" or snitches-for-pay, but criminals who are "working off" their crimes) unless the CI is represented by counsel. If a potential defendant is going to cut a deal with the government to avoid punishment for crimes, they should have a right to representation by a lawyer to make sure their rights are protected, just like if their case were going to trial.

Similarly, I think the whole system would benefit a lot if judges were brought in much earlier in the process. Presently, law enforcement can establish CIs on their own without even informing prosecutors before they make an arrest. But when the government -- be it the FBI, a prosecutor, or the cop on the beat -- uses leverage from crimes committed to coerce the CI into becoming their agent, I believe a judge should have to sign off on the deal, just like any other plea bargain. Otherwise, when something goes wrong, the judge is in the dark, just like Judge Breyer.

I wouldn't blame Judge Breyer for being a little grumpy at his brother over Thanksgiving dinner this year. Would you?

More from Federal Crimes Blog.