Message received: PR valued more than justice by Williamson DA

Good public policy is about outcomes. Bad public policy is frequently about grandstanding.

If you want to "send a message," rent a billboard. That's not the purpose of legislation, prosecution powers, parole decisions, or other functions of the justice system, which must be judged instead IMO by public safety outcomes.

In fact, whenever you hear a politician of any stripe calling for government to do something to "send a message," you can be pretty sure that whatever they're proposing will do more harm than good. That's true in nearly every instance, across the political spectrum. Such rhetoric shows the speaker has allowed their public relations goals to supersede their public policy goals. Reported Austin's KEYE-TV (3/18):

A judge has sentenced a woman described by Williamson County District Attorney John Bradley as a "serial drug dealer."

Regina Ann Burke, 44, of Manor pleaded guilty to two counts of delivery of a controlled substance.

The court gave Burke 35 years in jail for the crimes. She had previous drug and burglary convictions from other Texas counties as well.

In October and December of 2007, during an undercover narcotics investigation by the Williamson County Sheriff’s Office, Burke delivered methamphetamine to an undercover officer.

The transactions took place in the parking lot of the Round Rock Wal-Mart on I-35.

On a video released by the Williamson County DA, Burke can be heard complaining to a police interrogator that the DA's office was treating her like a major drug dealer.

Williamson County DA John Bradley responded in a written news release "[t]his case should make it obvious that the Parole Board’s policy of early release has given this drug dealer the wrong message.”

So according to John Bradley, the parole board sent the wrong message to Ms. Burke. Her recidivism sent a message about the parole board to him. So he pushed for a 35 year sentence for a pathetic, penny ante meth addict to send a message to the parole board about its "policy of early release," with KEYE as his eager accomplice.

That's a lot of message sending! But ignoring all the "messages" for a moment, what are the actual, real-world outcomes?

We already know why the parole board is releasing low-level offenders more frequently when they become eligible: The prisons are so overstuffed they don't have room for actually dangerous offenders, much less folks like Ms. Burke.

Texas prisons have 155,000 beds but release 70,000 per year, with a roughly equal number coming in. Our existing prisons are shortstaffed and there's little evidence TDCJ could find more guards at current pay rates, even if the state spent the billions necessary to construct new ones. As I've written previously, all this message sending by Mr. Bradley and his ilk has led to unsustainable prison growth rates:

from 1978 until 2004, the Texas prison population increased 573% (from 22,439 to 151,059), while the state's total population increased just 67% (from 13.5 million to 22.5 million).

That's right - a 573% increase in prisoners and a 67% increase in population over the same period.

But even that's not tough enough, so Bradley will send a message to build more prisons by pushing for ever-longer sentences for non-violent offenders. Where does it stop?

The TV news story gives no background, but I also wonder about how this woman got caught up in an undercover bust in the first place - was she targeted by the Williamson County Sheriff to "send a message," or did her activities come up as the result of routine investigation? I'd not be surprised a bit if it's the former. Was she selling drugs to others, or did the undercover officer befriend her and ask her to "score" as a favor? The latter method was a practice that allowed undercover cops in the Tulia-style drug task forces to rack up large numbers of low-level busts.

To me, this is the type of defendant who could do well under a stronger probation/community supervision regimen, like Judge Cynthia Kent's day reporting center in Tyler, which requires offenders to report daily, get a job, and comply with stricter controls than the monthly check-in typical of most probation supervision. For that matter, she's exactly the kind of person for whom drug courts were created.

But Mr. Bradley wants to "send a message" (and issue a press release, and get his name on TV), so instead of helping her turn her life around, get a job, pay taxes, and contribute to the community, taxpayers will just incarcerate her for the next 9-35 years, at a likely to rise cost of more than $16,000 (in 2007 dollars) annually.

Even worse, from a public policy perspective, they might have to release someone even more dangerous to make room for her, like happened with this guy.

All this message sending is getting expensive, and it's harming public safety. I think we can safely say at this point that "sending a message" is not the strong suit of the criminal justice system. Perhaps that's because its purpose is, you know, securing justice, not getting the DA's name on the local TV news.

RELATED: 60 year sentence in Williamson County for multiple DWIs.

Federal judge rejects TYC settlement on Evins unit in South Texas

The settlement agreement proposed between the Texas Youth Commission and the US Department of Justice didn't pass muster with the federal judge in charge of the case, reports the McAllen Monitor ("Judge refuses to accept settlement in Evins youth prison's civil rights case," March 18):

The state and federal governments are set to head back to the negotiating table, after a federal judge refused Monday to accept a settlement agreement over civil rights abuses at the Evins juvenile detention center.

U.S. District Judge Ricardo Hinojosa urged both parties to come up with a specific timeline for suggested reforms and criteria for evaluating the youth prison's progress.

"This is a discussion between the federal government and the state government with this court in the middle," Hinojosa said. And the court "is the lease equipped to manage a prison system."

The U.S. Department of Justice sued Evins and the state after an investigation revealed employees failed to protect inmates from staff abuse and youth-on-youth violence.

The Justice Department and the Texas Youth Commission - the state agency charged with overseeing Evins - reached a tentative agreement to the lawsuit in February.

In the proposed settlement, TYC officials agreed to provide youth inmates with safe living conditions and ensure they were protected from violence.

The commission also consented to other stipulations requiring that agency staff only use restraint to maintain security, provide adequate staffing levels and develop procedures to allow employees and inmates to report abuse without fear of retaliation.

But while the parties agreed to give a federal judge oversight of reform efforts for the next three years, on Monday Hinojosa said the proposed settlement did not adequately address what would happen should the Justice Department's demands go unmet.

He urged both parties to either settle their dispute outside of his purview or return to the court next month with a more detailed plan.

I'm sure administrators at TYC think this amounts to one more additional headache, but it sounds like the judge's main concern is putting extra teeth in the Agreed Order. That can only be a good thing as far as I'm concerned. See also coverage from AP.

Oral arguments at SCOTUS in Texas right to counsel case reveal new insights about murky systems

I earlier mentioned an important Texas case argued before the US Supreme Court yesterday, and have just finished reading the transcripts (pdf) from the oral arguments in Rothgery v. Gillespie County, Texas.

Mr. Rothgery who was arrested and refused an appointed attorney on what turned out to be wrongful gun charge, appears to me likely to prevail in the case, judging purely from Justices' comments. Justices Scalia, Ginsberg, Souter, Stevens, Kennedy and Breyer all seemed to be actively seeking ways to uphold the plaintiff's petition. Scalia outright said as much, as did Kennedy, who declared openly that what "we're looking for here, at least one of the things we might look for in this case, is a specific rule to give to the States so the State knows when counsel has to be appointed."

Chief Justice Roberts, by contrast, appeared intent on arguing Gillespie County's side more vehemently, while Alito's questions suggested that, at a minimum, he's thinking seriously about how Texas' system of appointing counsel should work compared to how it does. Clarence Thomas was his usual, silent self.

Having just read through the oral arguments transcript, I wanted to point out a few astonishing (to me, anyway) bits that emerged in the debate. First, this comment from the attorney for the state, Gregory Coleman, absolutely floored me:

some statistics that I have seen suggest that it may happen in half of the cases, where an individual is arrested, magistrated, released, and no official charges are ever brought

Can this possibly be true?!! Can it possibly be the case that in HALF of Texas' arrests, "no official charges are ever brought"? Why in the world are we arresting them, then? I'd like to know a lot more about that statistic and whether that's really the case. It seems improbable, but if that's really true, then our justice system is broken a lot worse than I've heretofore believed.

Justice Scalia picked up on this perhaps more strongly than any of the others when questioning Rothgery's attorney:

JUSTICE SCALIA: ... Texas made one of two possible constitutional violations. Either it was unconstitutional for Texas to require him to make bail, or it was unconstitutional for Texas not to provide him with an attorney. Why should -- why should we find that the latter was the problem rather than the former?

MS. SPINELLI: Well, there is certainly nothing unconstitutional about requiring bail, as we know.

JUSTICE SCALIA: Well, there certainly is if you're not charged. I think it's a very strong point in your favor that he was required to make bail, because I don't think you can hold somebody without charging him

Another astonishing exchange occurred on the same topic when the state's attorney essentially confirmed Scalia's interpretation under questioning from Justice Souter:

JUSTICE SOUTER: What you're saying, in answer to Justice Kennedy's question, that an individual can be brought into court, held in jail for three weeks without charge, and no right to counsel applies? I think that's your answer, but I want to make sure. I'll be candid to say I'm surprised. But if that's your position, I want to make sure I understand it.

MR. COLEMAN: Gerstein says that there must be --

JUSTICE SOUTER: I want to know what your answer is here. Get to authority later, but I want to know whether your position is that an individual may be brought by a police officer before a magistrate, charged with no crime, required to post bail, and if he doesn't post bail, be held for three weeks without charge.

MR. COLEMAN: That could not happen in Texas.

JUSTICE SOUTER: I'm not asking whether it could happen; I'm asking whether it would be constitutional without appointing counsel.

MR. COLEMAN: It would be -- not be a violation of the Sixth Amendment right to counsel.

What more can you add to that? Screw habeas corpus - they can arrest you, jail you, and not charge you for weeks without giving you a lawyer, according to this grotesque theory of justice. Justice Souter openly scoffed at Coleman's reasoning, declaring:

JUSTICE SOUTER ... In other words, if the lawyer comes in and says, you know, my client is sitting in jail, you've had him there for three days now, and no complaint has been filed against him, we don't know why he is being held -- your answer -- the -- it's a constitutional answer to say, well, you know, that's for us to know and you to find out? (Laughter.)

According to amici brief mentioned during the debate, 45 states provide defendants counsel upon their initial magistration, so Texas and a handful of other states (I don't know offhand which ones) are outliers nationally, and it wouldn't surprise me a bit if the high court takes this opportunity to create a national standard on the question, as Justice Kennedy overtly implied.

For more information, visit the website of the Texas Fair Defense Project, which brought the suit. Here are some initial reactions so far from the blogosphere (UPDATED):

• R. Enochs: When has adversarial proceeding commenced for Sixth Amendment purposes triggering a right to counsel?
  
• The Volokh Conspiracy: Thoughts on the oral argument in Rothgery v. Gillespie County, and Two thoughts on Rothgery
• Prawfsblawg: Message to Originalists and their Foes: Think 1868 not 1791
• Simple Justice: Rothgery Oral Argument: It's Easy to Be PC, and When does the right to counsel attach?
• Z the Legal Blog: Rothgery argued today in Supreme Court
• Stand Down: Another Rothgery Preview
• Cincinnati Law Library Blog: Right to counsel Supreme Court case
  
• South Texas Chisme: With Republicans, Americans can be arrested and held without a lawyer
• Grey at Law: Would you rather have a handgun or a lawyer?
  

Against Journalistic "Balance": Grits reaches one million visitor, 3,000 post milestones

I want to take a minute to thank everybody who reads this blog, which celebrates two landmarks with this post. Sometime today, barring an unforeseen traffic interruption, Grits for Breakfast will receive its one millionth visitor, according to SiteMeter. (Before you ask, I don't actually understand how their definition of "visitor" relates to the number of human beings reading the blog, but for those who care they explain it here.) Lately Grits has been receiving 50-60,000 visitors per month. Thanks, everyone, for coming!

Meanwhile, last week this item marked Grits' 3,000th post since I launched the blog in October 2004. That represents a lot of writing on my part, and a lot of reading on yours, not to mention many thousands of contributions by and conversations with readers in the comments section. I've gotten a lot of important tips from you, learned much from our conversations, and in many cases changed my own views or identified significant caveats or alternative explanations because of reader responses. In short, I'm certain I learn more from writing on Grits and debating these topics with commenters (and other bloggers) than my readers are ever likely to learn from me.

So in honor of these two bloggerly milestones, I hope readers will indulge some perhaps too-lengthy ruminations about what I'm hoping to accomplish on Grits as a writer (as opposed to a public policy advocate, where my goals are pretty plain).

I view Grits as a writer's experiment on several levels. When I launched the blog, I hoped to test the medium's effectiveness as a way to engage a state-level political issue at a time when (as is still the case) greater attention in the blogosphere was paid to elections than to what pols do once they're in office. Not only were blogs a new medium (though it dates myself to say so, when I began in print journalism we still sliced up columns of text with exacto knives and placed them by hand along with images on gridded paper using hot wax), for me, anyway Grits has been a chance to practice an alternative brand of public journalism, one that embraces rather than disdains authorial perspective.

There have always been editorial writers in journalism, but in the last century a conscious effort was made to divorce "opinion" from "fact." Most MSM journalism is still based on a value set created around the turn of the 20th Century that I believe has led the profession far off course. With the exception of occasional investigative articles or self-styled "analyses," modern journalism too often reverts to a formula where "fairness" and "balance" - to use the famous buzz words - prevail over "honesty" or "truth."

The idea of journalistic "balance" deserves particular scorn, since it inculcates several flawed assumptions that harm public debate and diminish the usefulness of its practitioners' product. The idea assumes there are two sides to be balanced in the first place. Or three. Or however many the reporter and the editor decide to include in the story. However, seldom do we hear acknowledgment that those represent CHOICES by journalists about whose opinions to include, even when they're portrayed by the author as "just the facts."

Indeed, any honest writer will admit they make so many choices in a given piece of prose, right down to quote placement, word and punctuation choice, rhythmic emphasis, and dozens of other things, that some sort of "bias" creeps in to every article, resulting in a situation where "all criticism is autobiographical," at least to some degree. Every writer's arguments have both strong suits and blind spots based on their personal knowledge, experience, values, sources, etc.. I believe readers are better served when writers acknowledge those biases up front and present them as part of the package, rather than conceal them behind false objectivity and feigned even-handedness.

An even bigger problem arises because the formula of journalistic "balance" inherently biases journalism toward institutional players, from whom the reporters inevitably feel obligated to "get a quote" and print it whether or not they believe it's true. In the criminal justice arena, in particular, this phenomenon contributes significantly to slanted coverage. But the same thing happens in everything the MSM covers.

I'm NOT saying that reporters who practice that style of journalism are personally unethical. If that's what you're taught and you're practicing the craft in good faith, that doesn't make you a bad person. At its best moments, some fine journalism has been performed under the "fair and balanced" formula. But as an everyday matter, the format forces upon reporters near-constant choices about whether their responsibility lies with their sources or their readers, and nearly guarantees that much of the time, they'll choose their sources' over their readers' interests.

My favorite TV show of all time is The Wire, which just concluded its final show a couple of weeks ago. Every week began with a quote from someone in that episode's storyline, highlighted in white print on a black screen as the brilliant theme song behind the opening credits drew to its conclusion. In the next to last episode, which focused on the news media, the pre-show epigraph IMO summed up the biggest failure regarding how reporters operate today: "A lie ain't a 'side of the story,' it's just a lie."

Public relations professionals (and today, every good politician is a public relations professional) know that to respond to media criticisms, you create a message and stick to it, repeating the element you want to appear in the story and refusing to answer more probative questions. Why? Reporters inevitably feel obligated to print "the other side," even when they know they're being misled. (A New York Times reporter famously said he was glad to quit covering Congress because he was tired of sitting around all day on marble slabs waiting for politicians to lie to him.)

That's what passes for journalistic ethics, sadly, in the 21st Century. Reporters justify this systematic promotion of spun or false information by telling themselves that, at least if someone lies, they got them "on the record" - sort of a journalistic version of a legal perjury trap. But for the most part, nobody goes back to hold sources accountable for past misleading statements. Lying to reporters is not illegal, after all, plus reporters avoid criticizing regular sources, particularly official ones, in order to curry favor - otherwise you can't get the next quote. To its credit, Comedy Central's "The Daily Show" has captured a huge audience with "news" stories that basically place today's quote side be side with last year's quote and expose the hypocrisy that runs through much of what the media reports.

To me, it's unethical for a reporter to promote arguments or fact propositions to their readers if they don't personally believe they're true, even if they quote "the other side," for "balance." A lie ain't a side of the story, it's just a lie.

When reporters print a quote and don't tell readers they think it's misleading or obfuscatory, which happens ALL the time, IMO they do their readers a serious disservice. And journalists, don't tell me you "let the facts speak for themselves" - you're the writer, so you're speaking. Period. It's not just "the facts" but the facts you choose to present. Plus you're the one who researched the story - your readers presumably don't know as much as you do.

All that to say, in Grits' first 3,000 posts, I've attempted to chart a different course, to provide a brand of reportage that helps fill in the meaning gaps in MSM coverage on Texas criminal justice issues.

Newspapers frequently attribute their circulation decline to the rise of new technology, but IMO their greatest failing hasn't been a reliance on dead trees, but their insistence on clinging to an outdated and counterproductive approach to newsgathering and storytelling. People read blogs not to get information, for the most part, but to help decipher what news stories mean, a niche that's only available because of the shortcomings of hundred-year old journalistic canons and customs.

So do not expect what you read here to be "fair" or "balanced" (though I try to be "honest" and "truthful," and admit mistakes when I make them). A primary goal of this blog is to rethink approaches to journalism and nonfiction writing, charting a path, I hope, that fits better both with modern technologies and sensibilities.

Thanks for coming by, everybody. This blog definitely wouldn't be what it is without every one of you reading and participating.

RateMyCop.com shut down, but this good idea should really be a government function

Via Stephen Gustitis I learn about "a new website called RateMyCop.com, that apparently was shut down last week after a flurry of controversy. Gustitis refers us to "Robert Guest at the new Dallas Criminal Defense Lawyer Blog [who] started the hoopla here. Gideon jumped in here. And Greenfield here.

"Guest observed the website owners were sending out open record requests to Texas law enforcement agencies to fill-out their database on Texas cops. Interestingly, the TDCAA message board was abuzz with discussions about the website and the requests."

The site was taken down very recently (see a March 12 screen shot) after its ISP pull the plug on its service without warning because of vigorous complaints from law enforcement. Scott Greenfield astutely pointed out that no one's similarly trying to shut down a site that lets cops gripe about other cops who write them tickets.

Personally I don't see why it takes a private group filing open records request to do this. Clearly from the positive public reaction to the site (outside of law enforcement), there's a hunger for information about police at this level of detail, and I see no reason to shut down a public venue discussing the subject. It sounds to me like RateMyCop was taking a responsible approach - relying on open records to document claims instead of only publishing anecdotal accounts. Ironically, though, it was the open records requests that made the police mad.

As far as I'm concerned, I'd like to see departments themselves publish every commendation and sustained disciplinary action online for every cop in their department, and provide the public an opportunity for direct, online feedback about individual officers, just like RateMyCop wants to do. I don't think it would harm a thing, and it might even give police supervisors information about their officers' performance they otherwise could never know, good and bad. The disciplinary actions and commendations are public records, anyway, and such a gesture would probably improve public trust of police thanks to the greater transparency.

Do they really have to appoint you a lawyer when you ask for one? SCOTUS to decide today in Texas case

For years, Texas counties have struggled to adequately meet the constitutional mandate that accused, indigent defendants have a right to legal counsel. Things improved, at significant additional expense, with the passage of the Fair Defense Act in 2001, which resulted in more frequent access to attorneys for many defendants but also much higher costs for counties, who'd been operating on the cheap for years.

Plenty of counties complain about the Fair Defense Act, but the US Supreme Court will soon decide in a Texas case whether even its requirements don't go far enough. SCOTUS will hear oral arguments at 11 a.m. (EST) in a suit brought by the Texas Fair Defense Project clarifying when in the arrest process the right to counsel kicks in. (See earlier Grits coverage, and the SCOTUS Wiki page on the case.)

The case arises from an incident in Fredericksburg, described in more detail in this Houston Chronicle article, where a man (it turned out wrongly) accused on a gun charge spent extra time in jail because he wasn't appointed attorney when he first went before a judge. Mr. Walter Rothgery was accused of being a felon in possession of a firearm, but it turned out the database accusing him of having a felony conviction was wrong. As a result, reported the Chronicle:

Rothgery spent the next six months in legal limbo: unable to get a full-time job because of the report of a conviction hanging over him and unable to afford a lawyer. He was indicted, re-arrested, had his bail tripled and moved to a county jail more than 100 miles from his home.

A sympathetic warden there helped him find a lawyer, who obtained documentation proving he had no felony record.

Three weeks later, Rothgery was released again on bail, and Gillespie County prosecutors ultimately dropped the charge. He was a free man.

"I guess everybody who gets arrested says they're innocent," Rothgery said. "Sometimes they are."

Rothgery's case caught the attention of Andrea Marsh, a rookie civil liberties lawyer who filed the first lawsuit of her career on his behalf against the county in 2004 alleging his Sixth Amendment right to an attorney was violated.

If a lawyer had been appointed, the mistake underlying his arrest would have been discovered and he wouldn't have been subjected to bond for a lengthy period and wrongfully jailed, she argued.

"I always thought once you ask for a lawyer you get a lawyer," Rothgery said.

Good luck today to Rothgery, Andrea Marsh, and the Texas Fair Defense Project. (As an aside, how cool is it for an attorney to have the first lawsuit you ever file go all the way to oral arguments at the US Supreme Court?! Congrats and good luck to Andrea, Harry, and everybody else in their shop.)

On the prosecutors' association user forum in December, one of their lobbyists, Shannon Edmonds, lamented that if SCOTUS restricts the ability to hold defendants in jail without appointing a lawyer, it may result in "fewer valid confessions." Moreover, he said, if SCOTUS requires appointment of counsel earlier in the process, "counties will squeal about the costs, leading to a statewide push for the creation of more local public defender offices."

More public defender offices, if you ask me, would be a good outcome from this case, if Edmonds' prediction holds true. If Rothgery wins, depending on the contents of the opinion, counties can "squeal" all they want but they still have to pay.

As for fewer confessions, though, let's interrogate this assertion for a second. Why would more people confess under the current system? Because they don't have a lawyer's advice! That certainly won't be an argument SCOTUS accepts (I would hope) for delaying appointment of an attorney. The other reason failing to appoint a lawyer would boost confessions is when the defendant sitting in jail and that's the quickest option to get out - particularly on lower level charges where probation or a short jail sentence is the most likely outcome. But "lock 'em up without a lawyer till they confess" isn't what the American justice system should be about, is it?

Edmonds further suggested that "more prosecutors might go to direct file systems with 24/7 review to weed out bad cases up front in an attempt to save the county some money (but only if they can convince their commissioners to fund it!)." Such a direct file system, incidentally, is part of the campaign platform of Mindy Montford, a candidate in the runoff for Travis County DA.

Stay tuned: As the originating state for the suit, depending on the outcome, the Rothgery case could have a big impact sooner than later in Texas on both defendants' rights to counsel and already-strained county budgets.

MORE: See two posts about Rothgery from Orin Kerr at the Volokh Conspiracy.

Who says you can never go home again? Tijuana cartel leader returns to Mexico after surprisingly short US prison stint

After a guilty plea earned him a 6-year federal sentence just last October, a top leader from the notorious "Tijuana Cartel" was cut loose last week, crossing back into Mexico from El Paso after spending less than six months in a federal prison in Texas. (Don't worry, though, we've replaced him with this guy, a lower-level lieutenant working for one of his brothers - you wouldn't want an empty prison bed!)

Maybe somebody with a PACER account and knowledge of federal sentencing guidelines can take a look at this case and tell me how this guy got out so soon. I really don't understand it, since there's no parole in the federal system.

The Tijuana Cartel for years dominated drug trafficking into Southern California, but decades-long focus from law enforcement combined with new, powerful and bloodthirsty competitors have weakened the family-run enterprise.

Law enforcement victories against the Tijuana Cartel have been much ballyhooed in the press. This was the fellow who's brother's sentence Doc Berman said demonstrated the death penalty is an "effective plea bargaining tool." But neither the death penalty nor anything else appears to effectively decapitate this hydra-headed monster, which just saw another head grow back with the release of Francisco Rafael Arellano Felix. His release occasioned this Reuters analysis by Lizbeth Diaz shedding more light on the current status of the cartels' war over market share ("Mexico's Tijuana cartel weaker as ex-boss comes home," March 14). Diaz writes that Felix:

is coming home to a gang badly weakened by army raids and territorial gains by rivals.

The family-run Arellano Felix cartel has controlled smuggling routes around the border city of Tijuana for years, using gruesome torture and executions to hold onto its turf.

But as the clan's eldest brother Francisco Rafael Arellano Felix returns to Mexico from a U.S. prison, the cartel, now run by one of his sisters, has lost ground to its enemies.

"They've been cut down to size in many ways. They don't have the penetration they did," said Bruce Bagley, a University of Miami professor who studies Mexico's drug cartels.

President Felipe Calderon's army-led crackdown has rounded up traffickers and busted police protection rings, and the powerful Sinaloa cartel from western Mexico has muscled its way into the Arellano Felix gang's home turf.

Experts say some Tijuana smugglers are breaking away and teaming up with the Sinaloa cartel on some drug deals.

"We're seeing the emergence of a post-Tijuana cartel structure in which you have smaller organizations, splinter groups, some of whom have now allied themselves with the Sinaloa cartel in a kind of confederation-like arrangement because they need protection," said Bagley.

In another blow to the Arellano Felix cartel, one of its high-level operatives, Gustavo Rivera Martinez, was arrested this week and is being extradited to face drug charges in the United States.

Francisco Rafael Arellano Felix, released from a Texas prison last week, ran the Tijuana cartel at the peak of its power and opulence and was a fixture at flashy discos and restaurants in the seedy border city until his arrest in 1993.

Although sources say he is already back in his old stomping ground in the northwestern state of Baja California, analysts expect him to play a hands-off "godfather" role rather than take over the cartel's operations.

They say Enedina Arellano Felix, one of four sisters, is now managing the family business after other brothers were arrested or shot dead in a shootout with police.

Police say she handles its many organized crime and money laundering arms, but her grip on the cartel's prized smuggling routes has been shaken.

Last year, the Sinaloa cartel took control of Mexicali, a key smuggling city on the U.S. border that was formerly Tijuana cartel turf.

The Tijuana Cartel has been one of the big losers in the Mexican cartel wars. By contrast, the Juarez Cartel, whose bloody rampages continue to shock the conscience and imagination, appears to have been more successful resisting the Sinaloa group's money and muscle. Authorities found a mass grave with 33 bodies attributed to the gang in El Paso's sister city just last week.

The other major drug ring in Mexico (though all these operate with relatively decentralized "cell" structures not entirely under any one person's control) is the "Gulf Cartel," which has been the main target of military actions in Mexico, particularly in the states along Texas' southern border. The Gulf Cartel's main enforcement arm are "Los Zetas," whose leaders are turncoat Mexican military commandos trained at Fort Benning, Georgia by US Special Forces. Recent unconfirmed reports indicate the Juarez Cartel leader spent millions to bribe away Los Zetas from the Gulf Cartel, but at the moment I'd place that assertion in the "rumor" category.

I've discussed before how I think the Sinaloa cartel's deep pockets and more vertically integrated distribution structure make it the likely, ultimate victor in the cartel wars, based purely on an economic analysis. But when simply murdering your competitors is an option, it changes the market dynamics considerably!

RELATED:

• As Mexico fights a 'hot' war, US not holding up its end against multinational drug cartels
• Mexican Army launches Gulf Cartel crackdown
• Mexican cartels continues supplying illegal drugs despite massive numbers of deaths and arrests
• Calderon and the drug cartels: Who's intimidating who?
• Bush and Calderon on outs: 'Merida plan' may not pass Congressional muster
• Briefing on Bush's drug plan raise more questions than answers
• Mexican drug gangs hiring teenage assassins in Texas
• Teen hitmen do Gulf Cartel dirty work on US side of the border
• "Queen of the Pacific": Mexican cartel bigshot has popular following
• Bazookas, grenades, corrupt police and the worsening border crisis
• Mexican Border Wars: 'The only leaders who can contain the violence are the ones who are in jail'
• What do we know about US-side cartel infrastructure?

Paroling murderers to make room for druggies?

Here's an excellent, real-world example of how expending scarce incarceration resources on low-level, nonviolent offenders takes up prison space that should be housing more dangerous people - a Texan paroled in 2006 after receiving a life sentence for murder in 1987 robbed two elderly men in Florida on Friday and is now back in custody. Reported the Orlando Sentinel ("Texas parolee charged with robbing two elderly men," March 15):

A Eustis man on parole for a murder he committed in Texas attacked and robbed two elderly men Thursday and Friday before deputies caught him using one of his victim's credit cards at a Wal-Mart, authorities said.

Glen Semento, 47, was charged with aggravated battery, robbery and fraudulent use of a credit card. He was being held without bond in the Lake County Jail. Sheriff's Capt. Todd Luce said it will be up to Texas to determine how to punish Semento for violating the conditions of his parole. ...

Jason Clark, a spokesman for the Texas Department of Criminal Justice, said Semento was convicted of first-degree murder in 1987 and was sentenced to life in prison. He was paroled in August 2006 and moved to Lake County. The Florida Department of Corrections agreed to supervise Semento's parole because he said he wanted to live with his parents and he had a job lined up, department spokeswoman Jo Ellyn Rackleff said.

According to the Texas appellate court opinion that upheld his conviction, Semento was convicted of murdering William Lappine in March 1986. Lappine died of strangulation, but he was also bludgeoned on the head and had defensive wounds on his hands and arms.

Investigators found that Semento had pawned Lappine's television and stereo. They also found a fingerprint and partial palm print that matched Semento's in Lappine's apartment. There was no evidence that Lappine and Semento knew each other.

To understand why such a person gets paroled requires a little background. After all, Texas' Board of Pardons and Parole is notoriously "tough." They established a set of guidelines for how many inmates should be receiving parole each year then for the most part have refused to follow them, denying parole every year to thousands of eligible inmates.

But ironically, for reasons I've never understood, Texas' parole board is MORE likely to follow its guidelines for the most violent offenders - like this guy - than for the lowest risk inmates. The Sunset Commission staff report evaluating them in 2006 found that (see here, page 29-30), "By not reflecting the guidelines, parole panel decisions may actually be skewed in favor of higher offense severity and higher-risk offenders." By contrast, for the lowest risk offenders, parole rates "have consistently fallen well below even the minimum rates that the guidelines would provide"

Translated from bureaucratese, that means the most dangerous offenders are more likely to be paroled when they're eligible than those who pose less risk.

There's only one reason that's happening: The prison system needs the space to house addicts, drunks, and non-violent offenders like this guy, and this one, and this schoolteacher, and homeless people who steal copper wire, and a host of others who didn't commit nearly as serious an offense as this fellow. They're locked up and he's out carjacking people. What's wrong with this picture?

A past campaign client of mine, former state Rep. Ray Allen, likes to say that Texas should only lock up people we're "afraid of," not those whom we're only "mad at." This case shows that's not just a catchy slogan, it's damn good public safety advice.

What if they held a prostitution sting and nobody in the media reported it?

In the process of tracking Travis County's new immigration detainer policy, Jamie Spencer happened to notice at the Travis County jail the results from a recent Austin prostitution sting that received no local publicity. He makes a good point and asks a legitimate question:

It used to be that I’d see these things publicized in the local paper – not the names of the arrestees, but the fact that the police department had run a sting, and how proud they were that they had arrested so many people, etc. But I’ve searched Google News and the Austin American Statesman, and I can’t find a press release or anything.

Hey, if you guys aren’t going to brag about this, is that some sort of indication that you think public support for these stings is waning? And if so, any chance you could use our money on something more useful?

Doc Berman is a fan of "shaming" penalties (to some extent), though he's also recognized in the past that prostitutes may also be "victims" as well as offenders. I'm curious whether he or others think that prosecution of men for soliciting prostitutes is a less effective tactic when it's not publicized?

See also from ACDL:

• Are Prostitution Stings Entrapment?
• Definition of Prostitution

And from Grits:

• Study: 3% of tricks by sex workers without pimps are 'freebies' given to police
• Cop: Snitches keep escort services in business
• Dallas' Letot Center combats prostitution among runaway girls

The View from Prosecutorlandia

The last post about prosecutor attitudes inevitably led me to visit the Texas District and County Attorney Association's user forums, where I've unintentionally neglected to check in for a while. Here are several recent, noteworthy items:

Parolees = Murderers?
Though 70,000 people leave Texas' prisons each year, most of them on parole, to read this discussion string you'd think they were every one murderers, particularly in the comments responding to the initial "horror story." BTW, here's the "horror story" posted by a prosecutor from Waxahachie: A guy who stole a car in 1991 and was a professional burglar by 1993 spent time in prison, got paroled, then committed a new offense in 2005 - an "accident causing injury or death" (I'm guessing it was "injury" since he was paroled so soon). On his most recent charge:

Now I've got him in his 6th county, for evading with a vehicle. Routine traffic stop that he turned into Death Race 2000, running stop signs and cutting across highway medians. Why? Because he had a parole violation warrant, of course.

But he's not a threat to the community, right?

What do readers think? He was on parole for an "accident," albeit a serious one, and fled because he didn't want to go back to prison. There's no evidence he'd gone back to burglarizing homes or stealing cars, and he's likely nearing the age when statistically antisocial behavior declines. Does this criminal record - most of it at least 15 years old - make him a "threat to the community" that justifies paying his room, board and health care for the next however many decades, or might other correctional approaches benefit society more? Clearly this ADA thinks prison didn't reform the fellow the last time. Let me know in the comments whether you agree this qualifies as a "horror story."

The rest of the string so far nearly immediately devolved into silliness and hyperbole, with two different prosecutors equating the above defendant with intentional murderers and copkillers. (I think that's one of the reasons I haven't visited the DA's user forums for a while. I don't watch Nancy Grace, either.)

Juking the Stats
Another telling string finds our prosecutor friends fawning over a column by Thomas Sowell arguing that incarcerating one in 100 US adults is a good thing. We find the usual pedantic complaints by Williamson DA John Bradley who decries "pretend conservative[s]" who oppose mass incarceration (Psssst ... note to Marc Levin - I think he's talking about you!). But we also discover a more thoughtful, first-order question about whether anyone, pro or con, can trust existing criminal justice statistics:

Unfortunately, the "playing with statistics" Sowell mentions is not limited to those who oppose incarceration, but is also actively done by those who favor it. In my government experience, 'juking' stats was like steroids in baseball -- it seemed like everyone did it and everyone justified it by pointing out that everyone did it, even while denying that they themselves did it. To paraphrase, "There are lies, there are damn lies, and there are the other guys statistics."

Part of the problem is that if you can't trust the statistics, then how can you base rational policy decisions on them (one way or the other)?

Damn good point. If you happened to watch the TV show, "The Wire," that was a central theme. In that show, it was also the kind of opinion, when uttered too loudly in law enforcement, that earned you an early retirement party.

A Simple Equation?
In the same string about Sowell's column, prosecutor Bob Cole, who elsewhere says "I have been accused by some of thinking that Joseph McCarthy was a liberal," declares forthrightly:

Why is this simple equation so difficult for some outside of our profession to understand?

Bad guys in jail + strong sentences = lower crime rate

Nothing too complicated about that. What did I miss?

Hmmmm, well Mr. Cole, perhaps it's because everyone else sees lots of real-world situations where that equation doesn't describe what's actually happening around them. Mostly, Cole's equation gives too much credit to the actions of law enforcers for the reduction in crime rate over the last 15 years, which has more to do with a cyclical decline in the number of young people, IMO, than recent trends toward mass incarceration.

Though we're incarcerating more people, a majority in prison committed nonviolent offenses, and a smaller percentage of serious crimes than ever these days are actually solved. Some criminal activity is basically tolerated. Drunks and addicts who enter prison but receive no treatment leave - whether two years down the line or 20 - with the same addiction problem that caused their original offense. He's also missing that 70,000 inmates leave Texas' prisons every year, out of 155,000 total beds, and that even if we built more prisons, the state can't find enough guards to staff the ones we've got. So how would it be physically possible to keep them in prison longer?

Finally, he's missing that every US state experienced crime reductions over the last 15 years, largely because of demographic trends (fewer young people combined with more immigrants led to a reduction in the demographic subset most responsible for crime) but Texas, which incarcerates the largest percentage of its residents in the nation, saw a SMALLER decline in crime than other states. That result just doesn't match his formula.

What other variables are Mr. Cole's "simple equation" missing?

Prosecutors as cultural critics
Finally, I was interested to see this string where prosecutors discuss the TV series "Dexter," about a serial killer working in a criminal forensic lab who only murders bad people who get away with their crimes. Naturally, some thought the show's popularity represented affirmation by the public for their own pro-death penalty, anti-appeal predilections:

his show reiterates the fact that a lot of people feel justice when the most heinous criminals receive the death penalty. And on the show, there are no trials, no 15 years of appeals, and no last minute "come to Jesus."

Another suggested that the show might undermine the credibility of law enforcers and the law generally with the public:

I find it somewhat amusing that Dexter is being run by CBS, home of CSI Miami. The premise of CSI Miamiseems to be that the bad guy can't hide from the lab's crack forensic scientists while Dexter, a forensic scientist for the Miami Crime Lab, seems to be untouchable.

I know the show is just entertainment, but it bothers me to make type of hero from a man who kills other, no matter how deserving the decedents.

But a more astute cultural critic recognized that the aforementioned discomfort was actually the point of the show's perverted premise:

I think the show does a good job exploring (in an entertaining way) our society's curious mix of love for, and revulsion against, violence. On one hand Dexter is is carrying out a rather crude form of "justice" by killing people who "deserve it." On the other hand, he enjoys his task all too much (in his odd emotion starved way) and does things like mutilate bodies and keep "trophies" of his kills.

If we are going to have a death penalty, why not have someone who *enjoys* killing do the job? Imagine hearing the following testimony: "I was happy when the perp went for his gun, because it gave me legal justification to blast his brains out. What a rush!" No crime, perhaps, but that just makes it even more troubling....

If thinking about such things bothers you, I'd suggest skipping the show.

That's certainly what I did, even though I don't mind thinking about such issues. I watched the first 20 minutes or so of the pilot, then quickly decided there were better ways to spend my time.

UPDATE: Reacting to the first item in this post, another prosecutor on that string poses the question:

I wonder if Grits has ever had to respond to a group of voters about why he thinks guys like that should be let out on parole. The fact that a guy that got 155 years in prison in 1993 was paroled before 2005 doesn't seem to have registered.

Answer: Of course I've explained my position on this to voters, many times. The answer is simple, if you're honest about it. We've filled the prisons up with nonviolent offenders to the point that we don't have room to house dangerous ones. This guy got 155 years for nonviolent offenses. (The fellow tries to say I downplayed the criminal history, but I linked to the full description on their site.) I recently wrote about a fellow who got 60 years for meth possession. But the length of sentences for nonviolent offenders has little to do with future dangerousness. So the parole board is making the utterly rational decision to release such folks so there will be room to house people who are actually predatory.

Since, as a practical matter, the state can't staff the prisons we've got, pushing for super-long sentences or calling for INCREASED incarceration of nonviolent offenders - these prosecutors' mantra - in practice amounts to a call to let more violent offenders back onto the street. I think that stance harms public safety more than it helps it.

Harris DA's Office Seeks Justice For Some

Mark Bennett shares a recent email exchange with an ADA from the Harris County District Attorney's Office (now under new management), where Bennett opined:

Our next DA needs to know that he or she is not part of a dynasty, is only temporary, is human and fallible, and answers ultimately to the families of the accused, who greatly outnumber the families of the victims.

The reply was particularly telling - one of those moments where first order assumptions spring forth that the (anonymous) correspondent has probably never seriously considered or even spoken out loud:

I’ve felt compassion for defendants from DWI offenders to murderers. But their families? . . . . I don’t think I owe anything to a defendant’s family.

Amazing. And we wonder why locking folks up doesn't reduce crime. Children of incarcerated parents are 6-8 times more likely than their peers to wind up in prison themselves. That's not all because of bad parenting - particularly when the "bad parent" is locked up. It's much more about depression, anger, resentment, confusion, despair, loneliness and an array of other emotional dynamics that face youth with incarcerated fathers and/or mothers.

But who cares? That's not a prosecutor's problem, right? He'll lock them up later, I guess. Do you think this ADA feels the same indifference toward victims' families? If so, it would at least be intellectually honest and consistent, perhaps even justified. If not, though, the view is hypocritical.

The state's biggest victims' rights group is called "Justice for All," not "Justice for Some," and prosecutors are charged to "seek justice," not convictions. I'm sure Mark's correspondent believes he is living up to that code, but to judge by the attitudes emerging from his emails, I don't.

Does rise in TDCJ discipline for absences and poor job performance stem from chronic understaffing?

Research about disciplinary actions against Texas correctional officers, generated by The Back Gate, a prison guards' blog, made its way into the Huntsville Item recently. TBG republished the piece, and since they have no permalinks on their otherwise excellent site, I'll just reproduce it here:

Statistics from the Texas Department of Criminal Justice reported nearly 8,000 disciplinary actions against employees of the system over a 12-month period, mostly for failing to perform their duties and unexcused absences.

Of the 7,786 recorded disciplinary actions taken by the agency, at least 1,574 of those were for substandard performance. The agency also reprimanded 1,719 employees for unexcused absence of an hour or more.

Michelle Lyons, a spokesperson for TDCJ, said the most common infractions included "unexcused absenteeism, substandard duty performance and failure to obey a proper order from an authority."

The statistics, obtained by The Back Gate, a TDCJ watchdog group, claims the numbers are on the rise.

"The fact is this, for this fiscal year within TDCJ, there was a sharp increase in these types of numbers," said Marcus Williams, a writer for the group. "Whatever the reason, it's alarming."

Lyons confirmed the numbers as accurate.

Of the infractions recorded against staff, 729 were dismissed and 221 infractations were overturned or modified.

But 538 staff members were fired over their disciplinary actions, while 51 were demoted, 7 received a reduction in pay and 911 were suspended for an indefinite amount of time without pay.

Most employees who were disciplined — 4,902 of them — were placed on probation.

As part of the dismissal process, employees are allowed to participate in their dismissal through a mediation process, according to Williams.

Of the 368 mediation sessions, 103 resigned during the process.

Another 221 of those were overturned or modified and two resigned before their official dismissal. Just over 200 were approved for dismissal and fired.

Other cited infractions included 780 violations of statutory authority, 494 for failure to obey a proper order from authority, 249 for tardiness, 240 for leaving their post, 228 for sleeping on duty, 227 for conviction of misdemeanor charges, 205 for falsification of state documents, and 181 for having verbal/physical confrontations with other staff members.

TDCJ employs a lot of folks, so these data represent a small percentage of total employees. But I take the fact that most infractions were for failure to perform duties and unexcused absences as evidence that TDCJ's chronic prison guard shortage has begun to more seriously effect on the job performance. It was already affecting employee safety. The number of assaults on guards and staff has doubled in the last five years, even though total prison populations have leveled off.

These data, incidentally, are for actual disciplinary actions by the agency, not the total number of complaints investigated which would have been much higher. TDCJ's institutional division, the part of the agency which runs Texas' prisons, has somewhere in the ballpark of 30,000 employees - more by a longshot than any other state agency.

Immigration enforcement interfering with other US Marshals' duties

Stricter enforcement of immigration laws is harming the effectiveness of federal fugitive apprehension and other critical public safety initiatives, a US Marshal's supervisor declared, particularly where the feds have implemented a pilot 'zero-tolerance' policy along the stretch of border near Del Rio. Reports the Dallas News ("Illegal immigrant program stretches marshals to the limit," March 13):

A program along the border in parts of Texas and Arizona to haul illegal immigrants off to jail instead of shipping them home has overwhelmed the U.S. Marshals Service.

The 600 marshals stationed on the border with Mexico are dealing with as many as 6,000 new defendants a month. That's taking them away from other tasks such as capturing escaped prisoners and rounding up sex offenders, according to Justice Department documents.

David Gonzales, the head marshal in Arizona, said "Operation Streamline" shows how a well-intentioned program to crack down on illegal immigrants can be undermined by inadequate funding and the strain it places on all layers of the criminal justice system.

"You can only stretch people so far," he said.

A Border Patrol chief says it would be impossible to scale up the program to cover the entire border. "We would probably freeze the entire court system in one day" if every illegal immigrant was prosecuted, he told the News. "It's selective prosecution."

Texas Congressman John Culberson is perhaps the most prominent politician pushing to expand the program, according to the paper. If he "and his allies have their way, the border court and detention system, already overburdened by drug, sex and violent crime cases, will buckle without more resources, defense attorneys say."

When you hear folks advocating mass expulsions or "securing the border," whatever that means, what you rarely hear along with it is a discussion of opportunity costs. Personally, I'd rather the US Marshals stay focused on fugitive apprehension, and I don't want the federal courts to divert their attention from sex crimes and serious violent offenses. But that's what's happening thanks to the sheer volume of immigration cases flooding Texas' southern and western federal district courts.

Rodney Ellis stumping for Harris County public defender office

If state Senator Rodney Ellis gets his way, Harris County will have a public defender office in the near future, reports Lisa Falkenberg at the Houston Chronicle ("An idea whose time has come?" March 12):

The time is ripe, Ellis believes, to begin the first real push for a public defender office in Harris County. All that's needed is one judge to support it and county commissioners to fund it. But Ellis has work cut out for him.

It shouldn't be such a radical concept. Harris County is the largest urban area in the nation without one.

Even in Texas, other large counties such as Dallas, Bexar and El Paso use public defender offices. Dallas' is the oldest. It started in 1983 with eight lawyers. It now has 90.

Ellis might get less resistance from defense attorneys than he expects. A few do-gooders are selflessly, shockingly endorsing the idea. Patrick McCann, president of the Harris County Criminal Lawyers Association, the county's largest defense bar, recently took a poll and the group's attorneys came out 2-to-1 in support of some kind of public defender office.

McCann refused to tell me how many of the 370 members participated in the poll — jokingly saying "it's more than 10" — but the fact that the group's president and its most active members supported the concept sends a message.

"I think our bar has come to an understanding that the playing field is so uneven, in terms of funding and resources," says McCann.

In Harris County, indigent defendants are represented by private attorneys whom judges appoint through a rotation system or on a contract basis. Defense attorneys complain that some judges aren't fair in divvying out appointments and some refuse to pay full costs for investigators and experts. And there are no real performance standards.

McCann says Harris County has gotten used to providing indigent representation "on the cheap." While the DA's budget is around $50 million, McCann says the county spent $24 million last year on appointed counsel. "The DAs have 30 investigators on their staff, on top of all the police they've got working for them, and we've got nobody," McCann says. "Five investigators (in a public defender office) would be such a leveling thing, you can't imagine."

Ellis also expects to get opposition from judges.

"The judges are fighting it," he told the lawyer group. "And the judges have gotten a few people who look like me and a couple who speak Spanish and some decent white folks, too, to buy into it just so they can get a few little old crumbs."

The few judges I talked to took issue with that statement, saying they wouldn't likely oppose anything that improves representation for poor defendants.

"Maybe he knows something I don't know," said Kelly Smith, staff attorney for 22 district court judges. "I've never heard any of the judges make a statement against a public defender's office."

The county's head prosecutor didn't voice outright opposition, either.

"I don't have strong feelings either way," said Bert Graham, who became acting district attorney after Rosenthal resigned. But he added, "I would think whatever gives the best representation for a defendant without breaking the county's coffers is the way you ought to go."

Even the most conservative judges in the state endorse more public defender offices, and they've worked well in other Texas counties where they've been implemented. I'd named the expansion of new PD offices one of the top criminal justice stories in 2006, and with the help of the Texas Task Force on Indigent Defense their growth has continued since then. In other states PD offices are much more common; Harris is the largest (by population) county in the nation that doesn't have one.

Harris County is receiving $1.7 million from the Task Force on Indigent Defense this year, but I could not tell from their grant information online what they're using the money for. To me, that's exactly what the Indigent Defense Task Force funds are for, and if they're not going to some version of a PD program, that money should be diverted to Sen. Ellis' pilot public defender idea. There's a decent chance after November he'll easily find new judges willing to give a PD office a try, and the Harris commissioners court will surely be more receptive if the senator comes in having identified a pot of money for them to jump start the program.

Perry to name Assistant US Attorney Ken Magidson interim Harris County DA

I'd speculated that the Governor would just wait and appoint the GOP winner in the runoff to be the interim Harris County District Attorney, but Rick Perry must not have liked the remaining two options - Pat Lykos and Kelly Siegler - because the Houston Chronicle reports that he's appointing Assistant US Attorney Ken Magidson Harris County DA, a position he'll hold for the next nine months before returning to the federal prosecutor's office.

Mr. Magidson's is not a name with which I'm personally familiar, but for initial local commentary on the appointment, see Defending People, Life at the Harris County Criminal Justice Center, BlogHouston, and Kuff.

Melee at federal detention center possibly caused by mixing pretrial, convicted inmates

After a large-scale fistfight on Tuesday night in which 9 inmates and three staff were injured at the federal detention facility in downtown Houston, one attorney "said that housing inmates awaiting transfer to federal prison for serious crimes under the same roof with pretrial defendants is a 'a recipe for disaster,'" reported the Houston Chronicle.

A couple of Mark Bennett's clients were in the facility at the time, the Chron reported, so maybe he'll have more thoughts on whether combining these classes of inmates causes other problems.

Sheriff threatens reporters with jail for writing about son's arrest

As public relations strategies go, this seems a little heavy handed, but then Duval County (home of disgraced Democratic kingmaker Clinton Manges, the famed "Duke of Duval") has always been known for its iron-fisted pols. Reported AP ("Sheriff threatens reporters with jail," March 13):

When the Duval County sheriff said he would lock up reporters from local newspapers if they kept "interfering" in his business, no one took the threat lightly.

For 20 years, Sheriff Santiago Barrera Jr. had done what he pleased with no challenges to his reign. He decided who sat in his jail and when they were released. Sometimes it was before a judge got involved and other times it was after.

"I brought the sheriff's department from nothing to what it is right now," said the 67-year-old Barrera.

That's why journalists are on edge about Barrera's recent threat to an Alice Echo-News Journal reporter.

Christopher Maher wrote a front-page story about the arrest of the sheriff's 42-year-old son Miguel Barrera on charges of public intoxication and resisting arrest. According to the newspaper, when Maher called the sheriff about another story, Barrera said, "If you guys keep interfering with my business, I'm going to have you arrested."

Nicole Perez, managing editor of the Echo-News Journal and The Freer Press alerted the county attorney.

"I am bringing these remarks to your attention in the hope that they will remain as such, just remarks," Perez wrote Duval County Attorney Ricardo Carrillo. "However, considering the volatile political atmosphere in Duval County I have no doubt that Sheriff Barrera would carry out such a threat."

Santiago Barrera confirmed he made the remarks to the reporter, and acknowledged the newspaper's story about his son's arrest upset him.

Asked how the Sheriff could stay in office for 20 years given his boorish behavior, the Duval County Attorney said, "He's a great politician and a terrible sheriff."

Second Chance Act passes Senate, headed to Bush's desk

Here's some terrific news out of D.C.: At long last Congress has passed the Second Chance Act. Since the Senate passed the same version as did the House last fall, there's no need for a conference committee and the bill now heads straight to President Bush, who is widely expected to sign it.

Thanks to Nkechi Taifa for the heads up, and congrats to all involved in passage of this important legislation. For more on details of the bill, see this page from the Re-Entry Policy Council at the National Council of State Governments.

MORE: From the Wall Street Journal, and also see a press release from Sen. Sam Brownback. Doc Berman rounds up more links.

Study: 3% of tricks by sex workers without pimps are 'freebies given to police'

The national hoo-ha over New York Governor Elliot Spitzer's prostitution scandal has inevitably generated renewed debate in the blogosphere regarding the oldest profession. Doc Berman points to an academic paper studying prostitution in Chicago (pdf) that found:

There is a surprisingly high prevalence of police officers demanding sex from prostitutes in return for avoiding arrest. For prostitutes who do not work with pimps (and thus are working the streets), roughly three percent of all their tricks are freebies given to police.

That statistic reminds me of a post about snitching on Grits in 2005, where an officer accused of having sex with prostitutes who were his confidential informants said that relationships as police snitches "are what keep escort services in business."

The study Berman referenced also estimates arrest and imprisonment rates for prostitution in Chicago:

We estimate that prostitutes are officially arrested only once per 450 tricks, with johns arrested even less frequently. Punishment conditional on arrest is limited — roughly 1 in 10 prostitute arrests leads to a prison sentence, with a mean sentence length of 1.2 years among that group.

So for a pros with no pimp, if it's true that 3% of tricks are with police in exchange for avoiding arrest, then for every 450 tricks, a prostitute will be arrested once and have sex with an officer 14 times! For every prison term given to a Chicago prostitute, following these estimates, a prostitute would have had sex with police officers 135 times! It would be difficult given that personal background, while sitting out your 1.2 years in prison, not to view the criminal justice system as indulging in blatant, enormous hypocrisy.

In practice, prostitution is "regulated" in Chicago but extralegally and informally. The "tax" paid is not money to the government but sex to beat cops in exchange for not enforcing the law - essentially it sounds like a protection racket perpetrated by law enforcers, if the study's figures are accurate.

Those are some eye popping estimates, though the research only examined Chicago. I wonder if similar ratios hold up in other jurisdictions?

In the same post, Doc Berman pointed to another batch of research on prostitution that listed a dozen things one must understand to think about prostitution. I found the list incomplete and ideologically skewed, and offered some satirical additions in the comments.

RELATED: From the Miami Herald, "Internet escort sites rarely policed." From AP, "Prostitution advances in a wired world." From Australia, "Brothel madam was police informant," Samar O'Shea at The Huffington Post asks "Is it time to legalize prostitution yet?" And giving the story an international flair, This is London informs us that the Duke of Westminster allegedly was client #6 among the ten clients discovered in the wiretap that nabbed Gov. Spitzer. CNN has an interview with the young lady in question.

Drug War still dominates US foreign policy challenges south of the border

Since Grits so far this week has focused mostly on the drug war, let's stick with that theme and turn our attention south of the border, calling readers' attention to several recent items demonstrating how US drug policy and Latin American foreign policy have become inextricably intertwined:

Washington to Mexico: Do as we say, not as we do
According to the UK Financial Times (March 1), the US has criticisms of how Mexico, Venezuela, and other countries are pursuing drug enforcement, but ironically heroin production from Afghanistan under US occupation is at an all-time high:

Washington yesterday warned that the security of Mexico and the US were at stake in the battle against Mexico's booming drugs trade, acknowledging that the increasingly violent fight is far from being won.

In a comprehensive annual report on the international drug trade, the US also said opium production in Afghanistan hit "historic highs" last year, with a harvest valued at $4bn, more than a third of that country's gross domestic product.

Some 90 per cent of the cocaine consumed in the US passes through Mexico, which last year also increased cultivation of both opium poppies and marijuana. Washington maintains that Mexican drug traffickers now control many of the drug distribution networks within the US.

Felipe Calderón, Mexico's president, has made his attempted crackdown on the country's drug cartels one of the signature issues of his tenure since taking office in December 2006.

"Mexico is confronted with an extraordinary challenge in the level of organised crime that it faces from the drug trade," said David Johnson, the chief State Department official responsible for anti-narcotics strategy, presenting the annual survey.

Mexican AG: US drug demand root cause of violent crime in Mexico
Telling US officials a message everyone knows is true but few American pols will admit out loud, Mexican Attorney General Eduardo Medina Mora Icaza says US drug demand and poor controls on black market weapons smuggling and money laundering are key contributors to instability and violence in Mexico.

``Pure cash crossing the border," Icaza said.``Weapons that are illegally shipped to Mexico from the United States and cash which relates to the illegal trade of drugs, which we assess together with the DEA (Drug Enforcement Administration) in the range of $10 billion of cash a year."

He said there's no way to break the connection between drug consumption in the United States and violence in Mexico.

``The violent behavior is the most prevalent threat to national security in Mexico," he said.

Icaza met with Gov. Janet Napolitano as he arrived in Phoenix for a conference of attorneys general from Mexico and the United States.

``The U.S. is the number one consumer in the world for drugs that are either produced or cross through Mexico," Icaza said. ``There is no way we can break the relationship between consumption in the United States" and violence in Mexico.

Assault rifles, grenades found in Cancun golf resort
For obvious reasons, authorities suspect drug smugglers after finding a cache of weapons in the Yucatan resort town that included 22 automatic weapons (some with laser sites), 14 grenades, and 500 rounds of ammunition. You could do a lot of damage pretty quickly with that stockpile.

Cartel boss who pled guilty last year walks back into Mexico a free man
Though prosecutors last year made much hay over the plea bargain and life sentence of a boss from the Tijuana cartel, one of his brothers who was just as involved was released from prison this month and allowed to go back to Mexico with no additional restrictions or pending charges. He pled guilty in 2007 to drug possession, but now is free to go. Compare that to this drug possession sentence against someone far less powerful or dangerous.

Mexico's Boss of Bosses?
Over at the BorderFire Report, read the story of Mexico's "boss of bosses" who allegedly purchased the loyalty of "Los Zetas" on behalf of the Juarez Cartel (based across the river from El Paso). I've read elsewhere that Los Zetas had separated from the Gulf Cartel, which originally recruited them, and were operating independently, but this is the first I've heard of them working on behalf of the Juarez Cartel instead.

Colombia invades Ecuador looking for FARC rebels
Finally, in Colombia a foreign policy imbroglio recently left that country, Ecuador and Venezuela on the brink of armed conflict after Colombia raided Ecuadorian territory to attack FARC rebels. BBC has the story. (For more background on America's "Plan Colombia" financing largely failed anti-drug initiatives in that country, see the recent article from Rolling Stone, How America Lost the War on Drugs.)

RELATED: From Pete Guither: UN Drug Policies Violate United Nations Charter

Binge drinking among Texans far outpaces illicit drug use

This chart surprised me in a recent federal survey showing that the prevalence of illicit drug use in Texas is lower among all age categories than most other states. I was also surprised by the wide variation among states regarding illicit drug use. Vermont had the highest rate of past month illicit drug use among young adults aged 18 to 25 (31.0 percent), and Utah had the lowest rate in that age group (12.93 percent)." In Texas, the "last month" usage rate for that age group was 16.77 percent, very much on the low end of the scale.

Interestingly, Texas had about the same last-month use rate for non-medical use of pain relievers as for marinuana - 11.94% among those age 18-25 had taken pain pills for non-medical reasons, compared to 12.09% among that age group who'd smoked pot..

Given how many people we send away for drugs, and for how long, not to mention our proximity to the border, I guess I'd wrongly assumed Texas faced more serious drug abuse problems than other states. According to these data, alcohol still outpaces illegal drugs as Texans' intoxicant of choice by a country mile - 40.99% of Texans age 18-25 engaged in binge drinking in the past month, according to the survey.

The full report is available on the Web here, via Medical News Today.

'Operation Byrne Blitz' makes explicit arrests-for-dollars link

Should law enforcement time arrests to generate media coverage aimed at supporting approval of pork barrel funds in the political process?

That's what's happening nationwide right now with drug task forces funded by the federal Byrne grant program. We got rid of ours in Texas, thank heavens, but other states' task forces are participating in Operation Byrne Blitz, a national campaign to publicize arrests last week in order to influence debate in Congress over their money. I'd seen the stories, but didn't realize this was a formal PR effort until reading a story from Kentucky ("CKADTF arrests total 13, part of National drug blitz," The Richmond Register, March 8), describing a series of arrests that were

"coordinated on the dates in conjunction with Operation Byrne Blitz.”

The operation was named for federal funding — Byrne/JAG — that was cut by President George W. Bush in an omnibus appropriations bill in December by $350 million. Byrne/JAG “provides funding to states and local areas to improve criminal justice system operations,” according to a National Narcotic Officers’ Associations’ Coalition press release.

This happened informally in Texas when the task forces' fate was being decided, with local officials staging arrests then bragging to the local media how indispensable their services were. But it takes a lot of chutzpah to take that concept to the level of a national campaign and give it an Operation title. (Here's another news article where the link is made explicit.)

These agencies have nearly made official what was de facto true in practice, anyway, making arrests in order to pursue funding, not to improve public safety. Now, with "Operation Byrne Blitz," some drug warriors apparently have dropped all pretense.

I find the manufactured media "blitz" offensive and insulting to the public. Let's hope Congress sees past it.

Related recent posts:

• Sheriff real, unintentional star of 'Tulia' film
• Byrne task force funds mainly financing low-level drug enforcement
• How do you define success in drug enforcement?
• Byrne task forces account for huge proportion of drug arrests in other states
• Congresswoman still spreading Tulia's lessons in Washington
• Texas' Tulia Lesson: Dems should join GOP in abandoning failed drug task force strategy

Editorial: Citations for low-level pot busts make safety sense

The Dallas News today has an editorial with which I wholeheartedly concur, congratulating authorities on agreeing to a pilot program allowing police to issue citations instead of arresting certain low level misdemeanants ("Citations vs. Jail Time," March 10). Though Dallas has a significant jail crowding problem, the News' editorialist framed the issue in terms of whether officials adequately trust police, arguing that:

it makes perfect sense to give street cops the option to write citations for certain lower-level crimes instead of requiring them to continue with the time-consuming arrest and jail booking process. We trust them to shoot or retreat. They can handle this.

Good point! I also agree when they write:

We only hope Dallas police and prosecutors get over their reluctance to apply this program to misdemeanor marijuana possession. Does every 20-year-old popped for two or three joints need to see the inside of a jail cell?

If we're going to be smart on crime, let's use our heads.

Dallas is the second major city (after Austin) to implement the new police authority, but in some agencies the same practice has been in place for years.

How do you define success in drug enforcement?

If you're a drug enforcement officer, how do you judge if your efforts have been a success?

According to the head of the HIDTA (High Intensity Drug Trafficking Area) task force in Atlanta, you know you're doing the job right when you see an increase in burglaries, armed robberies and murders! Reported the Atlanta Journal Constitution ("Federal vice agents tout successes," March 9):

He credits last year's spike in area burglaries, robberies and car thefts in part to criminals forced to pay more for their illicit drugs.

If law enforcement someday succeeds in breaking up established drug territories — the real sign of success from a metropolitan perspective — it could mean a similar spike in murders, as drug organizations vie for a larger market share.

"If the market here gets unstable down to the street, then the streets will get bloody," said [Jack] Killorin, director of Atlanta High Intensity Drug Trafficking Area Task Force (HIDTA). "I don't think we're there yet."

In reality, the notion that drug prices increased last year because of enforcement has been pretty thoroughly debunked. Still, the mindset here is incredibly telling, don't you think? One expects the general public does not see increased burglaries, robberies car thefts or murders as evidence of any success by law enforcement.

There is an art to redefining failure as success, and this gentleman has mastered it.

Sixty year sentence for low-level drug possession fills prison space needed for dangerous offenders

There are two primary causes for Texas prison overcrowding, and the Legislature's reforms last year only really addressed one of them: Too many probation and parole revocations, and too-long sentences for non-violent crimes, especially drug offenses.

For an example of the latter, look no further than a recent edition of the Tyler Morning Telegraph, where we read the story of a man who received a 60 year sentence for possession of 1.46 grams of meth and 2.93 grams of marijuana ("Meth possession nets convicted felon 60 years," March 6). Reported the paper:

Rickie Dawson York, who turned 39 on Tuesday, pleaded guilty to possessing 1.46 grams of meth on Oct. 16. A Smith County jury sentenced the Tyler man after 25 minutes of deliberation in 241st District Judge Jack Skeen Jr.'s court.

The third-degree felony, which carried a punishment range of two to 10 years in prison, was enhanced to a first-degree, with a possible sentence of 25 years to life in prison, because of his two prior felony convictions. York will have to serve 15 years before he is eligible for parole. ...

He possessed 1.46 grams of meth and 2.93 grams of marijuana, according to lab reports.

York, also known as Mark Burton, was convicted of delivering marijuana in Dallas County in 1996 and possessing a prohibited weapon in Smith County in 2006, for which he was on parole. Beginning in 1987, he has also has been convicted of theft, possession of a controlled substance, failure to identify/fugitive from justice, criminal mischief and theft by check.

Assistant Smith County District Attorney Zach Davis said York continued to commit offenses whenever he was released from jail or prison and will never change his behavior. The defendant testified he has had a drug problem for 21 years but, Davis said, he has never sought treatment for his addiction.

He asked the jury to sentence York to life in prison to send him a message to stop using and selling drugs and stealing from people.

Defense attorney Steven Comte said the punishment range was 25 years to life only because of York's criminal history, but that he has been punished and has served his sentences for all of his prior convictions.

"There is nothing about Mr. York's history that is violent and life should be reserved for the most heinous individuals out there," he said.

I find it difficult to imagine a prosecutor with a straight face asking for life imprisonment for this petty nonviolent offender, and more difficult still to understand how 12 sentient people in my hometown could agree a 60 year sentence was in order. He'll be eligible for parole after 15, but "eligible" doesn't mean that's when they let him out. In any event, at current costs, that means taxpayers will spend a quarter of a million (2008) dollars, minimum, and up to a million dollars to incarcerate this guy.

So the next time you hear Williamson County DA John Bradley complain in the press that the parole board has released some violent felon early, remember why they're doing it: Too many low-level, nonviolent offenders are serving long, mandatory sentences, taking up space needed to keep violent criminals there longer, especially since the state can't manage to staff the prisons we've got.

Actually proposing to reduce sentences for drug crime is almost a third rail in politics - a sure fire way to draw an opponent in the next cycle claiming you're soft on crime. But this would be a smart place to start. From a fiscal and safety perspective, it makes tremendous sense to reduce the highest penalties for drug possession from the first degree felony category (5-99 years) to a second degree felony (2-20). A corollary reform would be to disallow low-level possession charges to justify "habitual offender" status.

The long-term savings would be dramatic, and it's hard to argue from a public safety perspective that mere drug possession, with no commercial transaction or violence involved, should ever receive more than a 20 year sentence. But the change would reduce not just long-term incarceration costs but rising healthcare costs for older prisoners, which is the primary cost driver right now in prisons for health care. Every year 1.5% more people come into TDCJ, according to UTMB, but 14% more every year turn 55 years old, after which they have 5-6 times more medical visits than younger offenders.

Ironically, because of the way the Legislative Budget Board calculates its cost estimate for sentencing increases (and reductions, if there were such a thing) doesn't calculate far enough into the out years to capture the savings. But when you consider the savings from just this one example, a max sentence of 20 years would save taxpayers somewhere in the range of 2/3 of a million (2008) dollars. When you start to add up the number of drug users being convicted every year, at those costs, pretty soon it starts to add up to real money.