Bexar jail overcrowding calls for fresh solutions

Lucius Cincinnatus at the Jeffersonian emails to ask Grits' opinion on the Bexar County Jail's overincarceration crisis, described yesterday in the San Antonio Express News ("Crowded jail still vexes Bexar commissioners," Jan. 12). They're paying six figures for a new bureaucratic position to plan and coordinate housing for the jail population, but I don't think it will make a big difference without other changes.

For starters, those looking to reduce jail overcrowding should look to suggestions in Grits' "best practices" post on the topic. Several of those ideas apply to Bexar County's situation.

Bexar's failure to release more offenders on personal bond awaiting trial stands out as a big subject to address. Offhand, looking at the most recent report (pdf, Dec. 1, 2005) on Bexar County's jail population, 2,326 out of 3,930 inmates, or more than 59%, were incarcerated awaiting trial -- 641 of them misdemeanants and many more non-violent, low-level felons. By contrast, in much-larger Harris County, the number of misdemeanants in the jail is just over half that figure. So Bexar's incarcerating a much larger proportion of low-level offenders before trial than its larger cousin.

That's partially because in Bexar County, unlike Harris, the pretrial services division doesn't interview defendants unless they request an appointed lawyer (see the Bexar court rules, pdf), meaning that they don't screen many people who could be eligible for pre-trial release. Personal bonds should be offered based on defendants' relative dangerousness and likelihood to abscond, not the ability to pay a bail bondsman -- only screening formally indigent defendants excludes many from possibly receiving such bonds. Granting them more broadly could significantly reduce the jail population without harming public safety.

Bexar commissioners should also consider creating a public defenders office, which would streamline everything considerably for indigent defendants and help process cases faster and more cheaply. That's something the commissioners court could do on its own with help from state grants. [Correction: terms of the state grant mandate judges' involvement, more here.] In Hidalgo County the new public defenders office already has lessened jail overcrowding woes.

Part of the commissioners court's frustration is that they don't control a lot of the system. Reported the Express News:

Commissioners have no authority over other elected officials, and several county offices affect who gets in and out of jail, including the sheriff, courts, pretrial services and the district attorney. Dealing with the problem is a matter of ongoing negotiations.

District courts administrator Melissa Barlow Fischer said later that commissioners' remarks blindsided district judges.

"The district judges have been concentrating on jail population for the past year at the request of commissioners," Fischer said, adding that Adkisson had recently thanked them for their work. "It's a very complex issue, and we know that Commissioners Court understands that.

"We are looking forward to working with Mr. Charlton to find some answers," she added

I hope that's true because judges are critical to reducing jail overcrowding. Every one of those 641 misdemeanant defendants in the Bexar jail, for example, is there because a Bexar county judge decided to require them to pay bail instead of releasing them on personal bond. Even with more pretrial services recommendations for personal bonds, only judges could decide to do things differently.

Similarly, judges could start utilizing early probation release to reduce jail intake in the medium run. They should also quit requiring drug tests as bail conditions, since as I wrote in my "best practices" piece, "If you're not treating the addiction, the only point of drug testing is increased incarceration, and when jails are full we need to save the space for more dangerous offenders, not mere drug users." Nobody can make them do it -- Bexar judges would have to decide they wanted to reduce overcrowding and were willing to take leadership. Obviously, it's easier for judges to lock 'em up and pass on the problem to somebody else, but that's how Bexar got into this pickle.

Finally, local officials worried about overcrowded jails should show up at the Texas Legislature in 2007 to support a stronger probation system and targeted penalty reductions to reduce jail populations. In the big picture, Texas needs to focus criminal justice resources where they most benefit public safety, and quit expanding the system for expansion's sake.

Why prison for many non-violent crimes makes Texas less safe

Kevin at BlogHouston notes that the state can't keep track of all its parolees, whose system of supervision is nearly as overloaded and broken down as Texas' probation system. More than 3,200 parolees in Harris County have absconded, according to the report -- 494 of them violent criminals. Kevin quotes a representative from the Houston mayor's crime victims office complaining about a parolee named Charles Anderson with a "rap sheet a mile long" who absconded in October and was arrested again last week for abduction and rape.

But in this "tough on crime" state, why would such a person have been paroled in the first place? Because Texas prisons are full, and we have to have someplace to put the thousands of nonviolent offenders sent to prison each year -- often with sentences that will last decades. So the state has to let people like Charles Anderson out to make room, or spend billions on new prison beds over the next few years. Similarly, the parole system can't chase down violent absconders because it's overwhelmed hunting five times the number of nonviolent ones.

That leaves the state of Texas with three choices: 1) process more nonviolent offenders through probation and community-based sanctions instead of prison, 2) build more prisons at a cost of several billion dollars instead of spending the money on schools and roads, or 3) keep releasing dangerous offenders to make room for new non-violent ones, which is what's happening now.

I don't see another way. Governor Perry must, though, because he's said he doesn't want to build new prisons but then vetoed the best option in 2005 for relieving the influx of nonviolent and low-risk inmates, even as Texas prisons are overflowing. That means Governor Perry has, de facto, for now, chosen the third path.

From the time Texas revolted against Mexico in 1836 until Ronald Reagan became president, the number of Texas prison beds grew from zero to a little less than 30,000. In the next 25 years, that number increased five-fold to more than 150,000, and the majority of new inmates were non-violent offenders. Even that rate of increase, though, can't keep up with new prison entries stemming from the Legislature's penchant for passing so-called penalty "enhancements" that don't take into account financial costs. We are at a crisis point -- the status quo is untenable.

The best way out of this imbroglio would be to follow the advice of one of my past campaign clients, former House Corrections Committee Chairman Ray Allen (R-Grand Prairie - he's sadly retiring from the Lege this year), who is fond of saying Texas should imprison only people "who we're afraid of, not those we're only mad at." If Charles Anderson is guilty of the crime he's accused of, then his situation makes that point well -- there are dangerous criminals in the world who merit supervision by the state, but wasting limited supervision resources on non-dangerous offenders diverts from our real public safety priorities, and makes us all less safe.

You know prosecutors are relying on credible snitches when ...

the jailhouse informant who is the sole witness in a capital murder case is stabbed to death while committing a house burglary and the "mentally limited" defendant walks free.

A classic snitch story: the home burglar is cut loose in exchange for promised testimony and continues to commit crimes, while prosecutors apparently consider his word sufficiently credible to justify a death penalty case. Only the snitch's killing by a homeowner in defense of his property prevented that Faustian deal from being consummated in an actual death sentence. The supposd jailhouse "confession" could have just been made up. The defendant's public defender declared, "I am personally convinced he did not kill anyone."

If you've ever wondered how innocent people wind up on death row, this story shows how easily it could happen.

Caller Times: Do Perry and Dewhurst Care About Wrongful Convictions?

Kudos to the Corpus Christi Caller Times for calling out Governor Rick Perry and Lt. Governor David Dewhurst for their cavalier attitude toward wrongful convictions based on faulty forensic lab work.

The paper reports that both men have so far failed to appoint representatives to the Texas Forensic Science Commission, created by the 79th Texas Legislature in 2005 to "investigate potential instances of misconduct or negligence" in the labs, while the legislation's author says there's no money for the Commission even if they make their appointments ("Texas crime labs call for corrective action," Jan. 11). The Caller Times does a good job arguing why crime lab reform should be at the top of the state's to-do list:

Driving home the point was the release Wednesday of a review of 1,100 cases run through the Houston crime lab. A former Justice Department inspector, Michael Bromwich, reported that he found "major issues" in 27 of 67 DNA analyses he scrutinized. He also found flaws in 18 analyses performed by the lab's serology section.

In one chilling instance, exculpatory evidence in a capital punishment case was not reported. The death row inmate in question, and two others whose cases came into question, are still alive, but that's hardly reassuring.

It's worth pointing out that these are issues of life and death - and justice. It is reasonable to suggest that Messrs. Perry and Dewhurst move the Forensic Science Commission appointments to the very top of their To Do lists. And if money is indeed the issue, all concerned with the matter should join forces to shake it loose. Lives hang in the balance.

Exactly. There's only one thing missing in their analysis: If Perry or Dewhurst cared to do anything about the crime labs, they would have done it when the Legislature was in session in 2005, or the Governor could have added it to the call in one of the specials. That's the missing piece to understanding why no one has been appointed. Creating this BS commission was never more than public relations cover, an excuse not to do what needs to be done because that would cost too much money. As I told the Senate Criminal Justice Committee in testimony on the subject last year on behalf of ACLU:

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

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

That's the real way to solve this -- expanding discovery and making adequate funds available to indigent defendants for independent experts. That would cost many millions of dollars the state doesn't have, though, so the problem won't be solved by any commission, no matter who they appoint.

See this related Austin Statesman editorial reprinted in the Victoria Advocate this week, and this item at Prawfsblawg.

Texas AG should say 'No' to red light cameras

Texas Attorney General Greg Abbott has a chance to protect Texas drivers from mulcting fines and unnecessary traffic accidents. He should tell the Texas Department of Transportation (TXDoT) they can't use cameras to enforce red light violations at intersections involving state roads.

TXDoT has requested clarification from General Abbott about whether it's legal for local agencies to use cameras to give tickets for red light violations, reports the Austin Statesman ("Cameras click, then ticket at red lights," Jan. 11). TXDoT thinks the answer is "no," but has punted the question to the AG, reported the Statesman:

The Texas Department of Transportation has contended for the past two years that it has no authority on its roads to install the cameras and levy the fines. But because many state roads pass through cities as urban streets — such as Lamar Boulevard, Ed Bluestein Boulevard or the frontage roads on Interstate 35 — some cities have been pressuring the state agency to put the cameras on those roads. Or allow them to do so.

"We're stuck in the middle," said Carlos Lopez, the Transportation Department's director of traffic operations. "People are asking us, and we just want to know if we're right or not."

In December, Transportation Department Executive Director Michael Behrens requested a formal opinion from Texas Attorney General Greg Abbott about whether the law gives the department power to levy such fines on state roads.

The section of the Transportation Code that Harper-Brown amended is titled "Powers of local authorities," so even a ruling that the state can't install the cameras might have no effect on cities' authority.

Abbott's office has requested legal briefs on the question by Feb. 6. It is unclear when he might issue an opinion.

Houston, Garland, Richardson, Plano and Frisco are among the Texas cities that either have installed the cameras or plan to do so.

Regular Grits readers know I'm no fan of red light cameras, and strongly believe they're invasive, counterproductive, and in their current form in Texas, unconstitutional. (In the interest of full disclosure, since 2001 I've helped the ACLU of Texas legislative committee oppose red light cameras at the Texas Lege.)

Other states have been rejecting them right and left. The Texas Legislature historically opposes red light cameras by a wide margin, but Representative Linda Harper-Brown of Garland slipped neutral-sounding language onto a bill in 2003 that cities claim gave them authority to issue "civil" fines for red light running. That authority has never been tested, though, in any appellate court, and it's highly debatable.

For starters, if those cities continue to allow police officers to give regular traffic tickets to red light runners, they risk violating the equal protection clause of the 14th Amendment to the US Constitution. After all, if when you run a red light it's a civil violation, but when I run it I receive a criminal charge -- especially one that costs more money than a "civil" ticket -- then we're not receiving equal protection under the law. According to the Statesman,"the camera-based fee is typically about $75, less than the $200 or so of a criminal fine levied when a police officer issues a ticket."

The crassly mercenary motives of red-light-camera proponents makes this a difficult train to slow down -- huge potential revenues cloud officials judgment to the point that the contracts for installing these cameras amount to huge profit sharing schemes. In Houston, as is typical, all vendors bidding on the project would "provide the equipment for free and then take a cut of each fine," reported the Statesman.

That contract structure inevitably leads to profit-maximizing abuses and should raise more red flags than a Bolshevik parade. In California, yellow-light times were shortened to maximize the number of tickets issued, and "Lockheed Martin IMS, which operated the San Diego system, regularly scouted intersections in some cities based on high traffic volume, not locations that were most accident-prone. Documents revealed that officials sought locations with steep gradients and short yellow-light times," reported the New York Times last year. During the 79th Texas Legislature in 2005, camera-critic state Rep. Gary Elkins harped on this point:

"In almost every city where red light cameras have been allowed there has been a manipulation of traffic signals to increase tickets by reducing the duration of yellow lights," Elkins cautioned. "It really comes down to money."

Texas law doesn't prevent cities from adjusting yellow light times however they choose to maximize revenue. In fact, reducing yellow light times may contribute to an unlikely result noted by numerous researchers over the last year: red light cameras turn out to increase, not decrease accidents overall. All the "traffic safety" malarkey you hear from camera proponents really is just a smokescreen; the stats on the ground don't justify the rhetoric. "Cameras can't make judgment calls," Rep. Elkins pointed out. "They can't account for a driver trying to avoid an accident or for wet pavement." Reported the NY Times:

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

Similarly, in Virginia studies of traffic patterns in all seven VA cities using red light cameras showed an increase in injury accidents at intersections with cameras. Even more sympathetic studies show an increase in rear-end accidents, but argue that a smaller decrease in side-impact collisions justifies it. If as a result of their implementation, though, the number of ambulance visits to red light collisions in the jurisdiction actually increased, it becomes laughably difficult to justify cameras on public safety grounds.

Unconstitutional, unpopular, and unsafe -- a public policy trifecta. When you get right down to it, the drive for red light cameras really is all about the money.

UPDATE: Dallas plans to install them, too. DallasBlog has more.

Bill idea for 2007: Ban sale of cell phone records

Here's a bill idea I bet can be passed in the Texas Legislature in 2007 if the FCC fails to act: Banning cell phone companies from selling information about consumers' phone calling habits to list brokers. You can go online to a number of services, apparently, and buy a list of the numbers people called: that's just creepy.

It'd likely gain support from the same bipartisan block of legislators who in 2005 voted to forbid police from accessing drivers' information from OnStar and similar services without a court order. Note to self ...

UPDATE: Chip had more on this earlier. State Rep. candidate Patrick Franklin adds his two cents.

High fines needlessly fill jails with non-dangerous offenders

It's easy to understand the Texas Legislature's penchant for boosting fines for traffic tickets and other Class C offenses (low-level offenses which carry penalties of fines only, not incarceration): In theory, fines fill the local treasury without filling up the county jail or needing to pay attorneys for indigent defendants, both major cost drivers for Texas counties.

But when fines rise too high, they cease to serve such beneficial functions. After increasing nearly every legislative session for decades, today Texas state and local governments are too reliant on fine income, reflexively preferring to mulct low-level traffic offenders than to boost taxes. "I think anything we can do that helps us make a perpetrator pay the bill rather than the taxpayers is good," said Randall County Criminal District Attorney James Farren in today's Amarillo Globe News ("County office to enforce fines," Jan. 9). That's a fine sound bite, but foolish and misguided public policy: especially with Class C offenders more than any other class of violator, the "perpetrators" ARE the taxpayers, so what's the damn difference?

The Globe News article reports that Randall County has enacted a new state-mandated program to boost fine collection, but neighboring Potter County believes increased fine enforcement wouldn't benefit their county, reported the Globe News:

The [Randall County collections] department started as a mandate by the state to enhance the money brought in from fines and fees, a percentage of which goes to the state.

"Probably one third of what we collect goes to the state," Carter said.

Potter County will not be making the move for another year because it got a waiver from the state.

"That makes us just a collection agency for the state," said Potter County Judge Arthur Ware. "What happens if they don't pay? Put them in jail and hold them until they come up with the money at $45 a day to keep them?"

That's exactly right, and at a time when many Texas county jails are overcrowded with little respite in sight. Basically the new state policy has counties using their jails as a debtors' prisons, incarcerating people not because they're dangerous, but as maximum leverage for extracting money from Class C defendants. I'd not heard about this new state collections policy; I'll have to chase that sucker down, or maybe some reader knows something?

In any case, fine levels in Texas are out of control and everywhere contribute to jail overcrowding for precisely the reason identified by Potter County Judge -- defendants who otherwise would never be incarcerated are jailed at taxpayers' expense with zero benefit to public safety, just because they can't afford to pay.

I thought about this all not long ago when a college-age kid I know got a ticket for a Class C offense -- between the fine, court fees, fees to DPS, and the cost of a pretty-darn-worthless "class" she had to take (by her account it was disorganized and poorly taught), the whole thing cost around $550. She makes $7 per hour. If she were supporting herself that would be an impossible amount. Even with her parents' help, it's a strain.

But what happens to kids who don't have parents to backstop them? They just don't pay, then get picked up on warrants and inevitably wind up incarcerated on the taxpayers' dime. Who benefits then?

Even for folks who don't sit out petty sentences in jail, the cost of arresting, booking and processing people picked up on warrants for unpaid fines adds up given the volume of folks involved. It's really a huge waste of resources to use the criminal justice system as a giant debt collector -- beyond victim compensation, raising money shouldn't be a function of jails and courts. The Potter County judge prefers the old privatized system counties used before the new state mandate:

Currently, those fined are required to pay 40 percent at sentencing and the balance in 60 days.

"At the end of 60 days, they become delinquent and we can turn it over to a collection agency that tacks on a fee to the fine, and it costs the county nothing," Ware said.

The state will pay counties 10 percent of what the counties collect in return for the [new] service.

"They don't have to come up with the money for a collection department and they get 90 percent," Ware said.

Using a private collection agency for fines makes a lot more sense than filling up jails with non-dangerous offenders just to increase government revenue. I've not written much before about questions surrounding Class C fines, but I find this trend extraordinarily misguided and not just a little disturbing.

Special promotion: Share fart jokes for tickets to Darrow drama

You've got to love those Unitarians -- not only are they promoting a theatrical production of civil liberties hero and Scopes-trial attorney Clarence Darrow's life, but they've asked Grits to help promote the event with a free ticket giveaway!

The First Unitarian Universalist Church in Austin on Saturday will host two shows, one day only, of Gary L. Anderson starring in Clarence Darrow: The Search for Justice. The play appears to have received good reviews: “Anderson’s Darrow, is in the same league as Holbrook’s Mark Twain,” wrote the Eureka (CA) Times Standard, which is high praise indeed. Sounds like fun. If you're a fan of Darrow's and can be in Austin Saturday, I'd encourage you to check it out. See here for more information, or go here to purchase tickets for either the matinee or evening show.

Now to the silliness: Two lucky folks can attend the show for free thanks to tickets the UU congregation gave Grits to help promote the show. But what gimmick to use? How to decide who gets the tickets? Grits has never done anything like this before, and I'm not like a radio deejay where I can give them to the seventh caller. I thought about it long and hard (okay, for about twenty minutes this morning with my dogs over coffee), and finally hit upon the perfect promotion: The classic play and movie portraying Darrow's victory in the Scopes monkey trial was called, "Inherit the Wind," so with that recollection the solution to the perfect promotion became obvious:

Fart jokes. I mean, why not? What else are you going to do with "Inherit the Wind"? :-)

So that's how we'll decide the giveaway -- the person who submits the best fart joke will win two tickets to their choice of Saturday's shows. Email your jokes to me at shenson(at)austin.rr.com along with your contact information, and I'll post the winner and selected runners up on Friday. (Be sure to put "Darrow" or "fart joke" in the subject line, tell me how to reach you, and also which show you'd like to attend.)

Even if you don't live near enough Austin to come to the show, leave your fart jokes in the comments, anyway. Why not? And if you do live in Austin try to make it to the play on Saturday win or lose. It sounds like a good time for good cause.

Grits' 2005 Top Ten Texas Drug War Stories

Upon reviewing more closely the Austin Chronicle's top ten 2005 drug war stories, I realized only three actually were Texas-related, and by a longshot those weren't the ones I'd consider the most important drug war-related news items of 2005, so I thought I'd compile my own Texas-specific list, just for fun.

Here's the Grits for Breakfast version of the Top Ten Texas Drug War Stories of 2005. Be sure to let me know what you think I missed:

1. Mexican border wars: The Mexican-based Sinaloa and Gulf cartels, with federal, state and local Mexican law enforcement, parts of the military, and hired American gunmen serving as their proxies, are engaging in an open shooting war in Nuevo Laredo to decide who controls the drug traffic flowing through that town. The prize: Control of Interstate I-35 to San Antonio, Austin, Dallas, then on up to Kansas City and Des Moines, all the way to Chicago and beyond. The US supplies guns and cash headed south, Mexico supplies the drugs, mules, and foot soldiers as cannon fodder headed north. This sure makes the immigration problem more difficult to solve.
2. Cameron County Sheriff worked for drug traffickers: The headline pretty much says it all -- Cameron County is on the Mexican border at the mouth of the Rio Grande (Brownsville is the county seat), and the sheriff and his men were escorting drug runners through their jurisdiction for hefty fees. He was sentenced in December.
3. 'Blue Wall of Silence' crumbling in Sheetrock scandal: The wheels of justice turn slowly in the Dallas fake drug scandal -- colloquially known as the "sheetrock" scandal because for a year or so investigators falsely thought the soruce of the fake drugs was ground up sheetrock (it was really pool chalk; both are made of gypsum). One of the officers involved turned state's evidence against his former partner in December, alleging that former narcotics officer Mark Delapaz actually faked informant payments to pocket the cash himself. Dozens of people, most of them undocumented immigrants, were falsely convicted of drug running based on informants' testimony, set up with fake cocaine and meth shipments. Half of all the cocaine and 1/4 of all the meth supposedly seized by Dallas PD in 2001 turned out to be fake. Shamefully, three quarters of the Dallas narcotics officers who apparently faked field tests on the "drugs" in question still serve on the police force in Dallas.
4. Lege and Governor rein in drug task forces: In the wake of the Tulia episode and other scandals, the Texas Legislature passed HB 1239 requiring drug task forces to begin following Department of Public Safety rules or lose their asset forfeiture income. Immediately, many announced they'd close down rather than do so. After the law took effect in September, the Governor announced he'd shift Byrne grant spending away from drug task forces in March to use it for other items including drug treatment and border security (see Operation Linebacker, below).
   
5. Lege promotes drug courts, stronger supervision: Governor Perry vetoed Texas' most important probation-strengthening legislation, but three "riders" added to the state budget used funding carrots to encourage creation of graduated sanctions systems to reduce probation revocations (and therefore prison entries). Many thousands of drug and other offenders will be affected by the changes. Look for the vetoed legislation to return in 2007, since even the Governor's veto message said the probation system was broken and he wanted to reconsider it next session without one or two minor items in the bill.
6. Fourth Amendment protections vetoed: When police search vehicles at traffic stops they're looking for two things: drugs and guns. (Add alcohol to the list if the driver is a minor.) The Texas Legislature acted decisively in 2005 to protect drivers' right to be free from unreasonable searches, passing SB 1195 requiring police to obtain written or recorded consent to search vehicles at traffic stops if the officer doesn't have probable cause. (On guns, HB 823 protecting gun owners right to carry a weapon in their vehicle when traveling became law September 1.) Governor Perry vetoed SB 1195, but as with probation (somewhat oddly) encouraged the Legislature to reconsider the issue and bring up the topic in the 80th Legislature in 2007 (conveniently, after his re-election campaign).
7. Byrne grant cuts spur shift to "Operation Linebacker": Congress and President Bush have slashed the budget of the "Byrne Justice Assistance Grant" program, which in Texas mostly in the past went to pay for multi-jurisdictional drug task forces like the one in Tulia. In response, Governor Perry is shifting those funds away from drug task forces and toward a variety of other priorities, especially a plan presented by border sheriffs called "Operation Linebacker." The gist of this plan appears to be that each of those sheriffs receives $367,000 cash with no strings attached to improve border security for one year. Sounds like a great "plan," doesn't it?
8. DPS lab backlog fills county jails: Counties that use Texas Department of Public Safety labs to process tests on seized drugs (and these are important: see #3 above), find that defendants are waiting in jail up to two months longer than when those tests are performed by private labs. Lab tests cost around $125, while county jail costs are $40-$50 per day, so this practice not only unfairly penalizes certain defendants, but is also penny wise and pound foolish. Many county jails in Texas are already overcrowded.
9. Harris County unnecessarily jailing low-level drug offenders: In 2003, the Texas Legislature and Governor Perry approved HB 2668, telling judges to order probation and treatment instead of incarceration for first-time, low-level drug offenders (possession of less than a gram of powder or pills, in Texas, is a "state jail felony"), diverting about 4,000 people per year away from prison per year, according to official estimates. But Harris County prosecutors and judges flaunted the intent of the law, extensively using a loophole to require up to 6 months of county jail time as a "condition" of probation, even when the only way to house those prisoners was to make them sleep on mattresses on the floor.
10. House Committee says 'reduce pot penalties': The Texas House Criminal Jurisprudence Committee unanimously voted in 2005 for HB 254 reducing penalties for low-level marijuana possession from a Class B to a Class C misdemeanor -- a fine-only offense the equivalent of a traffic ticket. Three Dems and three Republicans voted for the bill, which would also have required offenders to take a drug education class. No one from law enforcement opposed it. The move would have saved counties tons money and reduced jail overcrowding, but was never placed before the full House for a vote. The Criminal Jurisprudence Chairman who backed the bill, former Travis County Sheriff Terry Keel (R-Austin), has since filed to run for a Justice's seat on the statewide Court of Criminal Appeals.

Austin Chronicle Retrospectives

Check out the Austin Chronicle's lists of top ten drug war and criminal justice stories from the Texas capital in 2005. It's interesting to me that the Chronicle's top ten retrospectives had such a big criminal justice focus. In years past they would have been more focused on the environment or urban development.

UPDATE: The Chronicle's drug war list missed one of the biggest Texas stories, so I wrote them the following LTE to remind them:

It's true medical marijuana didn't get out of committee in the Texas Lege, but a bigger story, IMO, was that the same committee (House Criminal Jurisprudence) approved HB 254 unanimously, with Republicans Mary Denny, Terry Keel and Debbie Riddle voting for it along with former drug task force commander Democrat Juan Escobar. That bill would have reduced the penalties for low-level marijuana possession from a Class B to a Class C misdemeanor -- meaning a traffic ticket-like fine and a drug education class comparable to what's currently required in Austin for paraphernalia charges.

Speaker Tom Craddick and the Calendars Committee didn't let the bill get a vote on the House floor, but it cleared committee mostly for financial reasons: with Class Bs counties must pay incarceration and indigent defense costs, while Class Cs generate fines and revenue, with fewer associated expenses. With county jails like Travis' and most others completely full, that legislation should still have legs in future sessions.

I thought that committee vote was a bigger deal than the press seems to -- a unanimous, bipartisan vote to reduce penalties for low-level marijuana possession? Come on! If medical marijuana's failure in Texas made the top ten, surely HB 254 passing the same committee with no opposition was bigger news?

Congress Cuts Drug War Pork

Yesterday's cartoon depicted the unlikely politics of Republican budget cutters slashing drug war pork-barrel programs, while earlier this week Grits documented alernative pork sources drug warriors might turn to instead. Now, this week's Drug War Chronicle details which Drug War programs were cut by Congress and President Bush and which ones survived. Reports DRC Net:

Emboldened by the Bush administration's Office of Management and Budget, which called for cuts in federal funding for multi-jurisdictional drug task forces and the High Intensity Drug Trafficking Area (HIDTA) program, as well as by conservative watchdog groups such as Citizens Against Government Waste, which criticized spending inside the drug czar's office, Congress made significant dents in funding for a number of drug war programs:

• Byrne/Justice Assistance Grants (JAG) block grants to the states: Cut from $725 million in 2004 and $625 million last year to $416 million this year.
• ONDCP media campaign: Cut by $20 million.
• President's student drug testing fund: Cut by $1 million.
• Safe and Drug-Free Schools program: Cut by $100 million.
• Drug Court Discretionary Grant program: Cut from $40 million to $10 million.

One program lined up for the budget ax that survived intact is HIDTA. The Bush administration wanted to slash its funding in half and move it out of the drug czar's office and into the Justice Department, but after a strong campaign by law enforcement lobbyists, that didn't happen. HIDTA instead got a $1 million budget increase, but that is effectively a small cut because it doesn't keep up with inflation over last year. Another program, Byrne/Justice discretionary grants to localities, went from $159 million in 2004 and $168 million last year to $191 million this year. But that increase is small compared with the cuts in the Byrne block grants.

"The Byrne grant and the media campaign cuts are the most significant," said Drug Policy Alliance national affairs director and Capitol Hill denizen Bill Piper. "Those Byrne block grants go directly to the states and keep the task forces alive. If that money were to disappear, the states wouldn't be able to afford a lot of their drug war. The more we cut into the federal subsidies for the drug war, the more likely we are to get reform in the states. We've already seen some of that in the last couple years, where Byrne cuts combined with economic recession forced the states to make some tough choices, and some of them reformed their drug laws as a result," he said.

That's what's happening in Texas, where budget cuts have forced Governor Perry to make tough choices, shifting Byrne grant money from rural drug task forces to other criminal justice priorities like drug courts and border security. I agree with the sentiment expressed by regular Grits visitor kaptinemo in the comments to this post:

how much longer does anyone believe that we can afford this 'rich man's hobby' of a DrugWar? How much longer can a politician afford to explain to an unemployed factory worker whose job has vanished and whose unemployment bennies have run out that to 'save' his kids from drugs (when ol' Joe Sixpack will soon have things like losing the mortgage and feeding those kids to worry about) he has to divert funds from those social safety net programs to pay for the fancy toys of DrugWarriors?

How long indeed? BTW, if Republicans including President Bush's Office of Management and Budget want to cut drug war programs, who is leading the charge to save them? That's right -- Congressional Democrats. John Kerry and Tom Harkin are the Byrne grant program's biggest Senate supporters. I've argued before that Democrats need to get over their reflexive Bush-bashing on this and get behind budget cuts for Byrne grants and HIDTA programs -- after all, even a stopped clock is right twice per day.

SA Current chows down on Grits

Grits for Breakfast got a sweet little write up in this week's San Antonio Current, quoting several recent posts and declaring that Grits provides "plenty of biting commentary and credible research." Nice! I've added that line to the promo quotes about Grits in the right-hand column. Read the rest here, and thanks to Current writer Francesca Camillo for the plug.

Narcs, liberals, and de-funding the War on Drugs

Click on the image for a better view. Generated at Wittycomics.com, via Tales of a PD Investigator.

Winners

Congratulations to Mack Brown, Vince Young and the 2005 national champion Texas Longhorn football team. What a friggin' amazing Rose Bowl. Wow!

Airport screeners invited to guess "Who's the terrorist?"

On ACLU of Texas' Liberty Blog this morning I posted an item titled "Airport screeners invited to guess 'Who's the terrrorist?'" Take a look.

Prison Life

Say "Howdy" to Prison Life, a weblog by Jason Everett, Texas Department of Criminal Justice prisoner # 1253516, posted via snail mail correspondence with Houston prison rights activist Ray Hill. Jason's been writing quite a bit since last summer, so I'm sorry I'd not found his lightly trafficked blog before now. His warden's been reading, though, and in this post Jason tells how the warden tried to use informaton from his blog against him to pressure Everett to snitch.

Check out Prison Life for a view of everyday life inside a Texas penitentiary.

Coercion, threats, intimidation and plea bargains: The Jack Abramoff case

Who would say there are no threats or intimidation involved in plea bargaining? Prosecutors executing them, thank you very much, and in Orwellian overtones. I agree with Mark Kleiman's characterization of the "grossly dishonest language" employed in Jack Abramoff's plea bargain. What grieves me, though, is that it takes a celebrity prosecution to highlight common, egregious practices that go on every day. Kleiman writes:

Paragraph One of the plea agreement states that "The defendant is entering into this agreement and is pleading guilty freely and voluntarily ... without threats, force, intimidation, or coercion of any kind."

Yes, I know that's just the boilerplate, but I find the false recitation obnoxious, especially the crashingly false "of any kind" thrown in as an afterthought. The agreement is indeed free, voluntary, and uncoerced in the sense that Abramoff faced no extra-legal force or threats. But to deny that being told you might die behind bars if you refuse to talk constitutes "threat" and "intimidation" is to stretch the language completely out of shape.

An act can be voluntary even if made under pressure: that is, I can freely choose to accept a lesser evil rather than a greater, as when the surgeon tells me he needs to amputate my leg to save my life. But when someone says he will damage me unless I do what he wants me to do, that's a coercive threat, and the fact that he is legally entitled to damage me because of my own past bad acts doesn't change that fact.

Kleiman has identified one of the great unspoken myths commonly applied to all plea bargains -- that they're just contracts freely entered into by defendants without coercion. It's pure B.S., though, one of the biggest of the criminal justice system's Big Lies -- unhappily, one that's turned our court system into an enormous plea mill. Without that myth enshrined in stare decisis, most justifications for a plea-bargain-based system of adjudicating guilt crumble.

Disbanded drug task forces look for forfeiture, federal pork money

Will agents from Texas' Tulia-style drug task forces, most of which will reportedly close down soon, simply latch onto other pork barrel funding streams to pay their salaries?

The Corpus Christi Caller-Times reports today ("Drug Task Force Agents May Not Be Funded," Jan. 3) that the Tri-County drug task force in southeast Texas is closing in March because of reductions in funds to the federal Byrne grant program. According to the task force's project director:

"It's our understanding that this will be the end of the governor's office funding for these types of task forces past that date," [Aransas District Attorney Patrick] Flanigan said. "It sounds like they don't want that anymore."

That's welcome news, but the same article announces that agencies participating in the Tri-County task force are still looking to profit from asset forfeiture revenue and federal grants:

Aransas County Sheriff Mark Gilliam said one of his two officers in the tri-county group will move in January to the task force run by the local division of the Drug Enforcement Agency. Aransas County will continue to fund that agent's salary and benefits, a cost of about $70,000.

With this new arrangement, the county will share in the seized assets with the other members of the DEA task force."We should be able to snag a good portion of that and put it to good use," Gilliam said.

Gilliam said most agencies with the DEA group receive more than $100,000 in seizures each year.

"It's a win-win for Aransas County, partnering with DEA and we have an opportunity to share in some of those seizures and that's going to be good for Aransas County, and hopefully if we seize enough money we'll be able to add another officer."

Here we see, IMO, the real motive for local law enforcement's participation in federally funded drug task forces -- both the ones funded by the Byrne grant program and others: Maximizing generation of asset forfeiture income, which always seems to matter to local agencies much more than reducing drug abuse or crime. Drug enforcement is the only law enforcement activity viewed as a revenue generator.

The Aransas Sheriff's quote also points to the prescience of Grits' law enforcement commenters who predicted that Texas drug task force agents wouldn't fade gently into that good night. When I reported in December that Congress cut the Byrne grant program that pays for task forces for the second year in a row, a former narcotics agent responded to predict that counties hoping to continue suckling on the drug war funding teat would rush to seek funding from and participation in an array of other sources, including several types of federally backed task forces:

HIDTA (High Intensity Drug Trafficking Area): This is the retirement home with large salaries for retired DEA Agents who dedicated their careers and the efforts of their DEA division to the state and local authority who selects HIDTA directors. If you don't believe me go to their website. 80% of those directors retired from DEA with 90,000 retirement salaries and now run HIDTA at a combined income of 200,000 or more. What area in the U.S. is a Low Intensity Trafficking Area?

MET (Mobile Enforcement Teams): MET Teams are DEA Agents who travel from a DEA Division to areas where the locals claim they need help. The costs of these federally financed teams costs more than the drugs they seize. In short, they come to town and arrest everyone. Then they leave and go to the next town with the same problem, only to see the same problem in the town they just left quickly return. That means they get to go back again, and again, and again.

Asset Forfeiture Fund: Most departments have built up funds from drug forfeitures and it's called their asset forfeiture fund. There's alot of money in most of those funds and it's used for more enforcement, more police, and more arrests. How is it that taxpayers finance the results from drug prosecution/arrests and drug profits only finance the effort that produces the arrest.

OCDETF (Organized Crime and Drug Enforcement Task Force): Another federal fund that can be tapped by state and locals who know how to write interesting reading proposals. The proposals aren't scrutnized or factually accurate. They're not used as proof at trial but they're fun to read and they were all prepared with a go-by. That's an OCDETF proposal that was approved in another geographical area and uses the language that's required by OCDETF to get funding.

I can't tell from the Caller Times article which type of "DEA task force" Aransas County hopes to joint, but it's likely one of those described by this commenter. (The HIDTA task forces have also been targeted by the Bush Administration for funding reductions, as Grits mentioned earlier.) Another commenter on the same string identified the national guard as a source of federal drug war funding to watch:

When are you going to tackle the Texas National Guard's boondoggle Counter Drug Program? With an actual war going on, this program is sucking valuable resources (people and money) from the NG's real mission; and pissing it away on nice cushy jobs for active duty soldiers, who are wasted anwering phones for the narcs.

Like the Byrne grant funds, Governor Perry controls Texas' national guard troops, though also like the Byrne grant funds it's likely he'd focus their efforts on the border before they worked rural areas covered by Texas' dying breed of Byrne task forces.

In any event, we should be just as concerned at Aransas' participation in a DEA task force as in a Tulia-style task force funded by the Byrne grant program. The same former narcotics agent quoted above (who I've spoken to and corresponded with independently) identified in the comments to this post the fundamental flaw marking all these pork-barrel projects -- they reward outcomes that result in large numbers of arrests but don't reduce drug use or improve public safety:

Local and State police compete for federal funds and the funds which pay for overtime, cars, guns, and other law enforcement perks are awarded to those agencies that have the highest numbers of arrests and seizures.

High numbers of arrests are newsworthy and large numbers of arrests makes the police look like they are effective, cooperating, and busy.

Tulia embodies this law enforcement model and so does every other drug task force across the United States with only one [difference].

The operations of Tulia were closely scrutinzed and that hasn't happened yet to other drug task forces in the other 49 states.

Grits 2005 Retrospective

Well thank God it's almost over. To be honest, 2005 wasn't a great year for me personally, but without question maintaining this blog has been one of the real high points. I've been churning out 15,000 to 30,000 words of prose here every month -- almost 900 posts so far -- far too much for any sensible person to wade through, I know (even my wife and best friends don't actually read this stuff!). It's great writing practice, though, and quite useful to me for tracking the issues I'm working on.

With that kind of output, I've no illusions too many people will go back to read Grits' voluminous archives, but if you're interested in sampling what I've been writing on this blog in 2005, I've compiled a more or less representative linkfest below:

January

• Senate testimony in Houston on flawed crime labs
• Brandon Moon: Give prisoners open records access
• A Fourth Amendment for the 21st century
• TX troopers teach profiling to mounties
• Accuracy optional in forensic science?
• Guest blogger Alan Bean: Daily coverage of Tulia cop Tom Coleman's perjury trial

February

• Fiscal note fantasy world
• Oklahoma meth law overhyped
• Drug task force cites Grits in federal court motion
• Unaccountable drug task forces boost liability everywhere
• Snitching undermines justice institutions
• A snitch in time
• Ending drug task force boosts drug enforcement in Lubbock
• Whither loyalty in the war on meth?

March

• Police oversearching not all about race
• Austin drivers refuse searches when they know they can
• Bleeding Red Ink: Why LBB is to blame for bloated prison budgets
• How often do drivers refuse consent to search at traffic stops?
• Safer with surveillance cameras or just more exposed?
• Why surveillance cameras don't reduce crime
• Biometric passwords risk gravest form of identity theft
• Drug courts = solution to meth epidemic in Piney Woods
• Passing along police lies
• Pack your pistola and hit the road
• Why drug task forces must go 101

April

• Texas criminal law not just for criminals anymore
• Left and right join to bash Byrne grants in D.C.
• LBB hasn't learned there's no free lunch
• 'Strange coalition' backs consent search ban
• Senator faces police retaliation over bills
• Using camera phone at movie theater Texas' most likely 1,942nd felony

May

• Texas right confronts 'overcriminalization'
• Where are the small government conservatives? (links to biometrics coverage)
• Prosecutor: War on drugs is just like beating your dog
• Task forces get more supervision instead of the axe
• Federal 'No More Tulias' legislation filed
• Written consent protects Texans' rights and prosecutors cases
• Written consent preferred by Texas prosecutors' manual

June

• Texas Lege avoided $1 billion in new prisons
• Perry vetoes key public safety bills
• Perry's vetoes worse than reported
• Harris revokes probation most among big Texas counties
• Illegal drugs 14% of world ag exports
• Blogs' role in political campaigns

July

• Blogs, Jazz and Message Development
• Failure to treat dyslexia increases crime
• Sun Tzu and the Art of Opposition Research, Parts One, Two, Three, Four, Five, and Six
• HPD crime lab showed 'indifference to right and wrong'
• Texas prisons overflowing, now what?
• Cameras wrong response to London bombings
• Making sure ex-prisoners can find employment

August

• Tradeoffs: Mexican cartels boost meth involvement
• Harris County bail and jail series linked here
• Drug war no longer a growth industry in Texas
• ACLU vs. police union on interpreting racial profiling data
• Silver linings: Probation strengthening measures Perry didn't veto
• Texas news sources and methods

September

• Will .0056 grams of meth get you high?
• DEA nostalgic for alcohol prohibition
• Texas' new carry law: What does it mean?
• Bail policies juice Tarrant jail overcrowding
• Does Tarrant County need a public defender?
• Do Texas counties violate drug offenders' right to a speedy trial?
• Why are Texas county jails overcrowded? Pretrial detention
• Oklahoma meth law not working

October

• Hutchison immigration plan harms public safety
• Tell me immigration opponents, what's the big deal?
• Grits on Travis County's probation department: Parts one, two, and three
• McLennan County 'snuffs' Agriplex task force
• Tom DeLay sees everyday Texas justice
• Blame game misses point on Hidalgo jail overcrowding
• Governor getting one-sided advice from CJAC appointees

November

• Rocha case shows Austin police oversight toothless
• Biometrics slope got slippery awfully quick
• The surprising economics of unsanctioned immigration
• New Hidalgo public defender spurred by jail overcrowding
• Grits' best practices to reduce county jail overcrowding

December

• Research needed to tell if fewer arrests increases crime
• Mexican border wars
• Are Texas courts one big plea mill?
• Seeds of a new centrism?
• Don't snitch, Jack (with links to other Grits snitch clips)
• Tarrant County bail politics keeps jail full
• Bad idea from Texas exported to Britain

Hope you enjoy this new year's sampler, and please come back by in 2006 for more nutritious, mouth-watering servings of Grits for Breakfast. Happy New Year, folks!

Bad idea from Texas exported to Britain: Arresting litterers and seat belt violators

Here's a terrible idea that Texas exported in 2001 to the rest of the country which now appears to have been exported again abroad, this time under the guise of fighting terrorism. On January 1, police in Britain will become empowered to arrest anyone for even the most minor violations, entirely at the officers' discretion ("Now you can be arrested for any offence," London Telegraph, 12-29):

Police are to be given sweeping powers to arrest people for every offence, including dropping litter, failure to wear a seat belt and other minor misdemeanours.

The measures, which come into force on Jan 1, are the biggest expansion in decades of police powers to deprive people of their liberty.

At present, officers can generally arrest people if they suspect them of committing an offence which carries at least five years in prison. They will now have the discretion to detain someone if they suspect any offence and think that an arrest is "necessary".

Here's the Texas connection: In January 2001, the US Supreme Court made some bad law in a Texas case called Atwater v. City of Lago Vista, ruling that it was constitutional to arrest anyone for any offense -- in that case a suburban Mom bringing her kid home from soccer practice, arrested for a seat belt violation. So long as that law stands, I've argued on Grits and at the Lege, it's laughable to claim that anyone "consents" voluntarily to searches by police officers. As I've described the problem previously:

In Texas, the US Supreme Court upheld our law in Atwater v. City of Lago Vista allowing arrests for "Class C" misdemeanors, which are misdemeanors for which the only punishment is a fine, not incarceration.

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

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

That Texas case became US law the same month President Bush was inaugurated, and in my own mind, unfairly perhaps, I've always associated Texas' exporting Governor Bush to the national stage with this particular authoritarian judicial ruling made national dicta just days before his ascension to the presidency. At the least, let's say I considered it an ill omen, one the British now share.

So to any English readers out there, let me fill you in on what you're in for, since we've been living with this situation in Texas for awhile now: Soon your local jails will be completely full of low-level arrestees at a huge cost to the taxpayers and with little benefit to public safety.

Welcome to the Texas criminal justice model. Enjoy.

Congressman made up Al Quaeda incident at TX border

A lie can travel halfway 'round the world before the truth can tie its shoes.

- Mark Twain (attributed)

Via Rio Grande Valley Politics:

In November ... US Congressman John Culberson told Fox News that an Iraqi national with ties to al qaeda was apprehended on the Texas-Mexico Border.

“And the Hudspeth County Sheriff, Arvin West, and the Brewster County, Ronnie Dodson, confirmed for me that they had an Al Qaeda terrorist, an Iraqi national who was on the FBI’s terrorist list as an Al Qaeda member in the Brewster County jail,” Culberson said on Fox's Hanity and Colmes show. ...

Brewster County Sheriff Ronnie Dodson said to the Big Bend Sentinel, “We have no terrorist in our jail.” Bill Vanderland of Midland, the FBI supervisor for the Permian Basin and Big Bend, stated to the press "that it appears the reports of Al Qaeda terrorists detained in Far West Texas jails has been blown way out of proportion."

Uh-huh

Statesman's old news on broken Travis probation system

The Austin Statesman finally acknowledged Travis County's "broken" system for supervising offenders on probation, I suppose better late than never. On Monday, the Statesman ran an item by Steven Kreytak describing a consultant's report critical of Travis County's system for supervising people on probation ("Broken Travis probation department getting fixed," Dec. 26). Reported Kreytak:

Travis County probation officers are so bogged down with paperwork and heavy caseloads that they do not have time to focus on ways to keep the probationers they supervise from committing new crimes, according to a recent consultant's report.

The analysis of the department that oversees about 11,500 people who might otherwise be in prison or jail also found other problems, including:

• Probation officers gather a wealth of computerized data that could help identify effective programs and plans for probationers, but those data are not regularly analyzed.
• Many probation officers do not leave their offices for home visits, a valuable way to develop relationships with probationers and spot potential problems.
• Many low-level offenders are too strictly supervised, increasing officers' workloads and diverting resources from probationers who need to be watched more closely.

An interesting description, but not exactly news. The "recent" study (pdf) came out in late August, and Monday's article didn't even mention the main fix consultants advocated to reduce probation caseloads. (Grits covered the consultant's findings more extensively in October here, here and here. ) This item obviously has been sitting in the can for quite a while, held back as filler for an off week when many reporters are on vacation and it's harder to fill newsholes in the paper. Or maybe editors just don't think it's very important.

From everything I hear, the probation department's new director, Dr. Geraldine Nagy, is steering the ship in the right direction -- aiming to reduce caseloads and probation revocations and focusing programs more precisely on the needs of the offender. Austin's sure lucky that Nagy didn't require media pressure to do the right thing.

I find it pretty ironic that the MSM -- and TV news in Austin are worse than the Statesman by a longshot -- focus so much attention covering "crime" on a case by case basis, but ignore for months stories like this that more directly affect public safety. One heinous crime might get hyped in the news for weeks, but a "broken" system for supervising convicted felons gets treated by the media as an afterthought.

RELATED:

• Grits on Travis' probation study: Parts one, two, and three
  
• Judge: Perry probation veto risks public safety
• Silver linings: Probation reforms Perry didn't veto
• Texas prisons overflowing, now what?
• Harris revokes probation most among big counties
• What they're reading at the Harris County probation department