US Sentencing Commission hears testimony on alternatives to incarceration, reentry

Yesterday morning I attended a portion of the regional hearing in Austin of the US Sentencing Commission, in particular a panel on "Alternatives to Incarceration, Reentry, and Community Impact."

Dallas District Attorney Craig Watkins was one of the panelists, and his comments were featured in coverage by the Associated Press. He opened by declaring that traditional crime fighting reacted to the offender but in the future should be proactive to prevent crime. Most prisoners are uneducated, unskilled and may have drug abuse issues, he said, so the public tends to have little sympathy for them. Yet the chances of improving public safety are greater, he said, if such folks can be raised up from their degraded circumstances and encouraged to change their lives - something that's not always encouraged by greater punishment.

Watkins described a program in his office for offenders aged 17-25 who commit "youthful indiscretions" in which they use "memo agreements" to dispose of misdemeanor charges without taking the case to court. He said this both saves the county money and reduces collateral consequences to the offender and community from a criminal conviction. Those who can't or won't be rehabilitated, he said, were identified in his office as "impact offenders" - folks who may have committed repeated low-level offenses, and he uses all the enhancement tools available to boost penalties higher and maximize their sentences.

Diana Dinitto of the UT School of Social Work told the Commission that US law improperly conflated drug use with drug crime. She said that most people in prison who need treatment don't get it, and that providing treatment while incarcerated creates additional barriers to success - particularly overcoming the troublesome transition period during reentry after leaving prison. She urged greater use of community-based treatments to avoid that transition period, and greater focus of supervision and treatment resources to ensuring "continuity of care" so offenders can maximize "sequential gains" accumulated during treatment.

Another major barrier to reentry, she said, is "discrimination" against people who commit drug crimes, particularly banning ex-offenders from receiving financial aid for college or participating in federal assistance programs. She pointed out that drug crimes are the only offenses that trigger the ban on college assistance, and said at a minimum students should only lose aid if the offense is committed while they're receiving it. She also complained that health insurance plans tend not to provide adequate coverage for substance abuse and mental health treatment.

Adam Gelb of the Pew Center on the States gave an excellent presentation that featured Texas' recent reforms as a prime example. See the detailed written materials he gave to the Commission here (pdf). The charts and graphs he presented make a strong case that mass incarceration is at best disassociated with recent crime reductions, since states that reduced incarceration have lowered crime as much or more than states with higher incarceration rates, getting a greater return on investment for criminal justice dollars.

One of the Commission members was particularly interested in Texas' legislation (see p. 13 of the presentation), but Gelb unfortunately gave a slightly incomplete depiction, telling the Commission there wasn't legislation per se but that the expansion of community corrections and treatment capacity was primarily done through the budget. That's not precisely accurate.

There actually was an accompanying bill in 2007 (several, really, but one main one) that included policy changes along with the new resources. The biggest change was to reduce probation lengths from 10 to 5 years for a wide range of nonviolent offenses from third degree felonies down, and to give offenders a chance to earn early release from probation through good behavior (at the judge's discretion) at either two years or half their probation term, whichever is later. In addition, the state used fiscal incentives to encourage local probation departments to implement progressive sanctions instead of revoking offenders to prison for low-level violations of their supervision conditions. Those changes combined to help reduce expanding probation rolls and hence the number of probation revocations.

Gelb said Texas' example showed that it isn't just the recent economic downturn causing states to reevaluate corrections policy, since Texas made our changes before the recent Wall Street collapse. That's true to an extent, but Texas definitely made those changes out of a desire to save money and avoid raising taxes, which would have been necessary if we'd built new prisons. That's the angle that got Republican leaders like Tom Craddick and Steve Ogden on board.

The fourth panelist, St. Louis University law prof Eric Miller, discussed the use of drug courts or "offender supervision courts," to use his phrase, arguing that in many cases drug courts are a "well meaning but flawed exit strategy" to keep offenders out of prison. They tend to have a "net widening" effect, he said, because they're too open ended and channel offenders into the system instead of away from it. He thinks judges should play a less active and more "managerial" role in drug courts.

Miller also made an excellent point that accountability is a "two-way street." He said if the offender must take responsibility for their actions, so should the government take responsibility for the harm caused by collateral consequences.

One commissioner suggested the testimony of the panelists meant that the idea of "expanding community correctional centers" in every jurisdiction was a "no brainer." I don't know much about federal community correctional centers, but this memo from the Bureau of Prisons describes them as "facilities in which offenders are free to leave the institution during approved hours for the purpose of participating in employment and other community programming activities." Sounds like a federal version of work-release.

There was also discussion of whether spending too much time - more than 3-4 months - in a halfway house upon leaving prison might be "counterproductive," which is the stance, commissioners said, taken by the head of the Bureau of Prisons. Nobody on the panel had an opinion on that question, but I'd be interested in learning more about the debate and the BOP's reasoning behind that stance.

After this panel I gave Mr. Watkins a ride to the airport then headed out to the state Judicial Advisory Council's biennial sentencing conference, some of which I'll be writing up this weekend. But the Sentencing Commission heard much more and written testimony from presenters who submitted it is available here, linked under the name of the presenter.

Out for the morning: Sentencing coverage to come

This morning I'm headed up to the UT Law School to hear a couple of panels presenting to the US Sentencing Commission, then after lunch out to a Sentencing Conference held biennially for judges, prosecutors and probation officials by TDCJ's Community Justice Assistance Division. (See their agenda [pdf].) These continue tomorrow, so I should have coverage for you from parts of both events in the next few days.

Use this post as an open thread to talk about state and federal sentencing issues or whatever other criminal justice topics are on your mind until I find time to get back on the blog.

Should prosectuors, public defenders, cops be required to 'resign to run'?

Should county employees be required to resign before they run for public office? Dallas District Attorney Craig Watkins initiated the debate by implementing a resign-to-run policy in his office six months ago, reports Kevin Krause at the Dallas News ("Dallas County public defender's proposed 'resign to run' policy has judicial candidates in office crying foul," Nov. 19):

to eliminate influence peddling at the Frank Crowley criminal courthouse downtown.

Watkins said that before he was DA, he remembers seeing defense attorneys negotiating plea deals with prosecutors who were judge candidates and then handing them envelopes with campaign contributions.

"For our system to work better overall, it's a policy that needs to be in place throughout the court system," Watkins said.

That makes a lot of sense for a District Attorney's office, but it's not every job where negotiating on behalf of the state is part of the employment description. I'm not sure the same strictures need apply to public defenders, who hold no similar leverage with which to extract contributions.

There's a risk that a countywide "resign to run" policy could really just be cover for an incumbent protection plan, since some of the most qualified people to lead the system at any given time may already be working in it. For example, "Sheriff Lupe Valdez said she would support a resign-to-run policy for her department," reported Krause. "In 2008, one of her deputies ran against her." I don't see any similar conflict for Sheriff's deputies running for office as I do assistant district attorneys. Indeed, where are we going to find law enforcement leaders to elect if they must leave law enforcement to run for Sheriff?

Incumbent protection - not preventing conflicts of interest - is why the public defender office is considering the change:

A key reason to enact a resign-to-run policy, [chief public defender Lynn] Richardson said, is to keep incumbent judges happy.

She said at least one judge has indicated that she will not use any public defenders in her courtroom unless the policy is enacted.

"Several judges have complained about the lack of trust for the office because we have so many attorneys running against them, and one judge has threatened to stop using the office as a result," Richardson e-mailed a county official.

Judge Angela King of County Criminal Court No. 6 is facing challenges from two assistant public defenders, neither of whom work in her court.

"You expressed to me that this has caused distrust of the office and has affected your ability to work with us," Richardson wrote in an e-mail to King. "You have indicated to me that having public defenders campaign against you would cause you to be distrustful of any assistant public defender assigned to your court."

Richardson said King confirmed that she would reconsider using public defenders if the resign-to-run policy is enacted. King didn't respond to a call seeking comment.

Other judges also are miffed about having challengers from the public defender's office.

IMO that's not a legitimate reason to keep people from running for office. Watkins' concerns about prosecutors negotiating on behalf of the state while receiving contributions from the lawyer on the other side of table probably are.

Assuming we're going to keep electing judges, Sheriffs and constables, what do you think? Should prosecutors or public defenders be required to resign to run? How about law enforcement officers? Where do you draw the line?

RELATED: See details of the proposed resign to run policy.

Medication lapse for Harris jail inmates especially long for patients with HIV

Randall Patterson has a compelling story at the Houston Press ("Jail misery," Nov. 19) that demonstrates in human form what the US Justice Department said were unconstitutional flaws in the Harris County jail's healthcare system. He highlights the case of Monte Killian, who became extremely ill after the jail failed to get him AIDS medication in a timely fashion.

In telling Killian's story, though, Randall buried his lede. Deep in the article we find this juicy paragraph:

It turns out that everyone who enters the jail on prescription meds experiences a break in their regimen, and that lapses in HIV treatment tend to be especially long. Dr. Michael Seale, the jail's director of health services, acknowledged the importance of minimizing such delays but said, "You can't go ahead without appropriate information." Thus, the clinic's thorough routine: Instead of confirming an inmate's claim of HIV by simply calling the inmate's doctor, the jail finds it necessary to test the inmate all over again before prescribing medication.

That's the critical piece - the element that makes this a public policy story that potentially affects everybody instead of just something that happened to Monte Killian. In September, the Texas Commission on Jail Standards cited failure to dispense prescription meds as one of the reasons the jail failed inspection, Patterson reports.

There are many situations where for public health reasons you wouldn't want to interrupt somebody's ongoing medication. AIDS patients are certainly one: Jails are unhealthy places and somebody without a natural immune system is in big trouble. And for obvious reasons, you don't want to keep mental health patients off their drugs for too long. For that matter, failure to keep somebody on antibiotics could cause jails to become incubators for antibiotic-resistant infections, which then migrate back to the free world.

That's an important glitch, plus it's a waste of resources to re-test inmates before prescribing medications. It would be quicker, easier and less expensive for everybody to rely on the private docs' diagnosis and prescription regimen until jail docs find reason to dispute it. That would also avoid medication delays that are getting the jail in trouble with the Justice Department and state jail regulators.

ACLU: CCA ignored evidence of false confession in capital case

Here's the text of a press release published today by the ACLU regarding a Court of Criminal Appeals decision in the Max Soffar case. I offer it FWIW, I have no personal knowledge of the details of the case:

Texas Appeals Court Rejects Appeal Of Innocent Man On Death Row For 28 Years

Death Sentence Upheld Despite Overwhelming Evidence Pointing To Innocence

AUSTIN, Texas - November 18 - The Texas Court of Criminal Appeals today rejected the appeal of an innocent man represented by the American Civil Liberties Union and the Texas Innocence Network (TIN) who has been incarcerated on Texas's death row for more than 28 years.

Max Soffar, whose mental illness left him particularly vulnerable to giving a false confession, stands convicted and sentenced to death for allegedly killing four victims during an armed robbery in a Houston bowling alley in 1980. Soffar appealed on the grounds that the trial court in 2006 prevented him from proving his innocence to the jury.

"Once again, this case demonstrates that serious error riddles the criminal justice system," said Brian Stull, staff attorney with the ACLU Capital Punishment Project. "When the state seeks a person's death as punishment, we must demand a process that produces accurate and reliable results. When an innocent man sits on death row for 28 years having never received a fair trial, when juries are not allowed to hear the evidence, and when appeals courts do not intervene to fix these problems, no one can trust the process."

In 1981, Soffar was convicted and sentenced to death based upon a false confession, but a federal court overturned the conviction in 2004 because his trial lawyers failed to argue that Soffar's confession contradicted the other evidence in the case.

In today's opinion, the court ruled that the false confession given by Soffar should stand, and that his constitutional rights were not violated when his 2006 trial court judge refused to allow him to show that the only correct details in his false confession were not the result of his involvement in the crime but instead had been obtained through widely disseminated media reports. The prosecution claimed, in an argument to the jury, that these details — although broadcast throughout Texas — could only have been known by the person responsible for the crime. Making an argument that not even the prosecutor made on appeal, the Texas Court of Criminal Appeals said in today's decision that even if the trial court judge erred by refusing to allow Soffar to utilize the media reports as part of his defense, the error was "harmless."

False confessions are among the leading causes of wrongful convictions, and evidence shows that people like Soffar who are impulsive, have low intelligence, low self esteem and are prone to fantasy and disassociation are the most likely candidates for false confessions.

The appeals court today also rejected Soffar's argument that the trial judge erred by refusing to admit evidence that another man confessed to committing the murders, and that this man committed a series of highly similar robbery-murders in Tennessee. The man, Paul Reid, formerly of Houston, now awaits execution on Tennessee's death row. A photograph of Reid, taken in Houston nine days after the crime, strongly resembles the composite sketch the police prepared based on the description of the sole witness to the crime.

Soffar's false confession also contradicts the account of the sole surviving witness and other reliable evidence.

"This case represents a textbook example of a miscarriage of justice," said David Dow of TIN. "From a false confession to two unfair trials and death sentences, the problems with Max Soffar's case show the grave failures of the criminal justice system. With the court's ruling today, Texas comes closer to executing another innocent man."

Soffar intends to appeal his conviction and death sentence to the U.S. Supreme Court, as well as pursue any and all additional appeals.

A copy of today's decision is available online at: www.aclu.org/capital-punishment/texas-court-criminal-appeals-decision-max-soffar-case

Additional information on Max Soffar's case is available online at: www.aclu.org/capital/innocence/29715res20070430.html

Lawyers on this case are Stull of the ACLU Capital Punishment Project and Dow and Jared Tyler of the Texas Innocence Network.

Florida looking to Texas for overincarceration solutions

Just a few years ago it was unimaginable that anyone would look to Texas for solutions to overincarceration pressures in state prisons. But beginning in 2007, Texas embarked on a remarkable bipartisan effort spearheaded by Sen. John Whitmire and Rep. Jerry Madden to avoid new prison building by expanding diversion programming and creating incentives to use progressive sanctions and reduce probation revocations. Amazingly, other states - most recently Florida - are now looking to emulate Texas' model, as described in this article from the St. Petersburg Times ("Florida's prison problem could find a solution in Texas," Nov. 18):

Florida is staring at a Texas-sized problem.

Fortunately, Texas might also have the solution.

Two years ago that state faced its own prison crisis: house 17,000 new inmates by 2012 at a cost of half a billion dollars.

But Texas never built any new prisons. Instead, for half that amount, it revamped its criminal justice system, reduced its prison population and became a national model for reform.

Too often Texas' justice system is the source of barbs and giggles, if not outrage and horror, when discussed by others around the country. Our governor scoffs at scientists and daydreams about secession, while our Court of Criminal Appeals notoriously excuses even the grossest official misconduct - like a judge and prosecutor sleeping together - if it helps uphold a conviction.

So it's a pretty extraordinary thing to read about some aspect of Texas' justice system receiving high praise from states who'd like to copy us, and it's a tremendous credit to legislators for putting aside partisan differences in order to make those reforms happen. Texas has lately become a national leader at reducing its incarceration rate. The state needs to build on those successes, not rest on our laurels, but I'm proud of everyone who was involved in making those changes happen and also protecting those accomplishments in 2009.

Just to have mentioned it, since Madden, Whitmire and their respective committees always get credit for the 2007 probation reforms, its should be noted that Senate Finance Chair Steve Ogden, who is retiring from the Senate this election cycle, supported funding for the 2007 probation initiatives even though they went against some of his own tuff-on-crime views, which as Finance Chair came into conflict with his more notorious fiscal conservative streak. Texas' probation reforms wouldn't have happened if he hadn't been willing to take a leap of faith, and the good senator hasn't always gotten credit for that. So thanks, Sen. Ogden.

Nueces looks to GPS for supervising work-release offenders

Nueces County plans to try using GPS ankle monitors and house arrest in lieu of incarcerating offenders in the county's work-release program. Reports the Corpus Christi Caller Times ("Commissioners approve ankle monitoring to relieve jail overcrowding," Nov. 18):

County Commissioners approved a program Wednesday that gives judges the option of sentencing low-risk offenders to house arrest using ankle-monitoring bracelets rather than sending them to jail.

Offenders would be required to pay the $6.50-a-day cost of the electronic tracking devices. ...

Inmates eligible for ankle monitors would be those on a work-release agreement with the courts. The decision will be made by local judges and the monitoring and fee collections handled by the sheriff’s office. ...

The county is expected to order 10 ankle monitors and evaluate the program after two months to determine whether it is effective.

It's no surprise that work-release programs are among the first to go when jails are overcrowded. When offenders are low enough risk to allow them to leave for work every day, it serves little public safety purpose to incarcerate them at night or on weekends in an already-full jail.

Travis County this year ended its work-release program. Travis offenders who previously would have been in work-release instead show up on weekends and participate in work crews instead of spending the weekend incarcerated. In Smith County, inmates previously incarcerated on work-release are now supervised through the day reporting center created by the county and Judge Cynthia Kent.

Like the solutions in other counties, Nueces County's approach in practice will require extra staff resources for monitoring. GPS is tracking is more resource-intensive than many agencies anticipate and is not a substitute for well-staffed community supervision. But I'm encouraged by their efforts to move non-dangerous offenders out of the jail and supervise them in the community. It's a small step in the right direction.

Federal Sentencing Commission to hold regional hearing this week in Austin

Via Sentencing Law and Policy I discover that the US Sentencing Commission will be meeting in Austin this week. Here's the press release announcing the event and an agenda with a list of speakers.

According to the release, "The public and the media are invited to attend the hearing, which will be held at the University of Texas at Austin School of Law, Eidman Courtroom, CCJ Building, 727 East Dean Keeton Street, Austin, TX 78705. On November 19, the hearing will begin at 8:30 a.m. and conclude at 3:00 p.m. On November 20, it will begin at 8:45 a.m. and will conclude at 1:00 p.m."

On Thursday, Dallas DA Craig Watkins will be on a panel discussing "Alternatives to incarceration, reentry, and community impact." Adam Gelb of the Pew Center on the States will be on the same panel - I've read and used his work before but never met Mr. Gelb. Another panel on federal probation consists of the probation directors in Texas' Western and Southern Judicial Districts.

On Friday morning, Judges Edith Jones and Fortunato Benavides from the Fifth Circuit Court of Appeals will offer a "View from the Appellate Bench." Harley Lappin, the director of the Federal Bureau of Prisons, will also speak on Friday.

This blog doesn't closely follow federal sentencing issues, and I've never been to a US Sentencing Commission meeting. (Texas relies on jury sentencing and plea bargains and doesn't have a comparable body.) But if they're going to bring all these bigwigs to Austin and speak about criminal justice issues just a mile or so from my home, I suppose I should attend. :)

DPS to parents: Your kid could become a Mexican cartel assassin if you don't watch out

I have to wonder what was the purpose behind the timing of a DPS press release (pdf) issued today? Here's the text:

DPS warns parents:
Mexican cartels and gangs recruiting in Texas schools

The Texas Department of Public Safety is warning parents across the state to be aware of efforts by Mexican cartels and transnational gangs to recruit Texas youth in our schools and communities. These violent organizations are luring teens with the prospect of cars, money and notoriety, promising them if they get caught, they will receive a minimal sentence.

The Mexican cartels constantly seek new ways to smuggle drugs and humans into Texas are now using state based gangs and our youth to support their operations on both sides of the border.

For example, Laredo natives Gabriel Cardona and Rosalio Reta were recruited in their teens to be hit men for the Zetas. The Zetas, composed primarily of former Mexican military commandos, originally served as the enforcement arm of the Gulf Cartel, but have since become their own cartel. El Paso teens have been recruited to smuggle drugs across the border, many with the packs taped to their bodies.

While such recruitment is growing across Texas, juveniles along the Texas-Mexico border are particularly susceptible. In 2008, young people from the counties along the Texas-Mexico border accounted for just 9 percent of the population in Texas, but 18 percent of the felony drug charges and gang-related arrests.

“As these dangerous organizations seek to co-opt our children to support their criminal operations, it is more important than ever that parents be aware of these risks, talk to their children and pay attention to any signs that they may have become involved in illegal activities,” said Steven C. McCraw, director of the Texas Department of Public Safety.

To protect our communities and our children from these powerful and ruthless criminal organizations, local, state and federal law enforcement agencies and the District Attorneys in Texas border counties are working together to detect, disrupt and deter Mexican cartel-related crime along the Texas-Mexico border.

I agree drug cartel violence is a big problem; I'm particularly concerned that nobody seems to have a plan for what to do about Ciudad Juarez, which has devolved into an anarchic dystopia, awash in blood. Against that backdrop, though, it's odd for DPS to highlight the two cases of teen "hit men" which actually happened several years ago. The story came out in the press in April 2007 - see Grits coverage - back when now-DPS director McCraw was the governor's homeland security chief.

One supposes that kids most likely to be recruited by drug gangs will be neglected, dispossessed, and impoverished - i.e., youth whose parents aren't likely to read or respond to a DPS press release. Further, it follows that such recruits will likely number among the many thousands of Texas high school dropouts, not in "schools," as the press release headline suggests. These criminal smuggling organizations feed off the misery and fear of others, including the children they recruit, so the cartels benefit from a robust labor pool whenever a large, poor, uneducated underclass exists. That group of youth, not those in school with attentive parents, are the ones likely to be trained and recruited by groups like Los Zetas.

In light of that distinction, one wonders if warning parents to talk to their children and pay attention for signs of illegal activities by kids will really help retard drug smuggling or cartel violence? It seems like a strange focus, though certainly from a political perspective you can never go wrong issuing calls to Protect the Children. But if DPS really wants the public's help disabling drug cartels, why not ask them to help identify corrupt public officials? Lord knows we've got our share of those, and average folks are more likely to turn them in than they are their own kids.

H/T: Dallas News Crime Blog

MORE (11/18): From the Texas Tribune, where Brandi Grissom came up with a better headline than mine: Mamas, Don't Let Your Babies Grow Up to be Smugglers.

Does rise in white-collar prosecutions stem from too-weak business regulation?

I've suggested before that white-collar crime prosecutions shouldn't be used as alternatives to industry regulation, but given how white-collar cases frequently play out in the real world, I can understand why that approach is politically and, to an extent, even practically justified.

Take the instance yesterday in which the state insurance regulator ruled that State Farm had overcharged its customers hundreds of millions of dollars over the last six years. Reports the Dallas News:

State Farm Insurance must repay its customers $310 million for charging them too much for homeowners coverage dating back to 2003, the state insurance commissioner ruled Monday.

The ruling by Insurance Commissioner Mike Geeslin, the latest in a years-long case, is for far less than the $1 billion that consumer advocates recommended, and one called it a "joke."...

Alex Winslow of Texas Watch, a leading consumer group on insurance issues, called Geeslin's ruling a "slap in the face," saying it cheats State Farm policyholders out of millions of dollars in excessive premiums.

"The commissioner has shirked his responsibility to Texas homeowners and proved that our current insurance market doesn't work," he said.

"Consumers had a right to expect a full and complete refund of all overcharges plus interest, and the commissioner chose to allow State Farm to pocket hundreds of millions of dollars rather than return that money to policyholders," he added.

A stronger regulatory system with teeth might have a) kept overcharges from happening in the first place or b) more completely compensated customers for the money State Farm charged them over the regulated rate. However, Texas' insurance commissioner is a political appointee and the big insurance companies in this state tend to get what they want, or most of it, from the political class - pretty much no matter which party is in power.

I know no more about this case than what's reported in the paper, but let's say it's true that State Farm overcharged its customers around $1 billion and now won't pay them back on the grounds that they'd go bankrupt. (The closing paragraph in the article says State Farm spent the money to pay back a loan to its parent company, so I don't see why that entity couldn't pay). Let's face it, if someone knowingly overcharges a customer then refuses to give the money back because they already spent it, that's tantamount to theft. And allegedly stealing a billion dollars is a big deal, even if it was stolen from thousands of ratepayers a few hundred dollars at a time.

To be clear, I don't think prosecuting insurance executives in rate disputes would benefit the ratepayers or, really, anyone at all. Historically American society hasn't dealt with that kind of corporate "theft" through the criminal justice system, which is designed to more effectively prosecute thefts by the poor - e.g., burglaries by druggies or the homeless guy for stealing copper wire from a construction site. Law enforcement isn't very effective at going after the guys who steal nine or ten-figure sums with a fountain pen instead of a gun, though in theory such offenses would merit life sentences in Texas (or 5-99) based on the amount of money stolen. Even when white-collar offenders are prosecuted and punished, rarely does that mean the crime victims get their money back.

The other option in such circumstances is civil litigation, but tort reform has made such large-scale class-action suits more difficult and less lucrative. Even when a suit can be pursued, attorneys regularly settle their cases for large fees but only symbolic compensation for the thousands of affected consumers - hardly a satisfying outcome.

In this case, reports the Dallas News, State Farm "was told to cut its rates 12 percent" in 2003. They "sued the state, and the case has been rolling around the courts since," but in the meantime they continued to charge customers the higher rates. So the company defied state regulators and knowingly continued to charge its customers more than state law allowed.

Regrettably, given a chance to order that they repay the full amount of the overcharge, Texas' one-man insurance regulatory body decided that State Farm needn't pay 70% of what they allegedly, improperly took. He had the chance to fix the problem on behalf of ratepayers, but instead created a situation where they apparently have no meaningful recourse through either civil or regulatory means to recoup 70% of what they were overcharged.

If ratepayers want justice, they clearly won't get it through the civil courts or state regulators - both have had their chance. So if they're not going to be fully compensated for what's taken from them, it's understandable why injured parties and the observing public would conclude that punishment in the criminal justice system is at least some justice if not the most preferable outcome, which would be recouping lost funds.

Such an environment of consumer/public frustration - where it appears government is incapable of fairly resolving middle-class disputes with corporate power - create a strong political motive for prosecutors to pursue white-collar crime cases, often over what used to be considered unfortunate, spectacular, but in the big capitalistic picture relatively routine, non-theft business losses.

There's a difference between a Bernie Madoff running an outright Ponzi scheme and a speculator who loses clients' money because the bubble they were hyping suddenly burst. (State Farm's case, to me, lies somewhere in the hazy middle on that spectrum.) And even Bernie Madoff should have been caught by regulators, it's just that the agencies in charge of oversight were lax, underfunded, incompetent and in some cases even corrupt.

In the wake of recent Wall Street debacles and bailouts, I'd harbored perhaps quixotic hopes that the coming months and years might find a more receptive environment for regulatory solutions regarding corporate misconduct, finding ways to resolve or (even better) prevent such imbroglios without the need for large-scale civil litigation, much less expensive, morally ambiguous white-collar criminal prosecutions aimed at satisfying an angry and vengeful public.

If state regulators and civil courts are too weak and disempowered to exact justice for consumers, it's only natural the public would turn to prosecutors for answers, since they wield enormous power - even if harshly punishing such "offenders" can't restore what's lost to victims. I'm just not sure who such an approach really benefits.

TDCJ on recording death row visits: Policy? What policy?

Yesterday I got back a response to my public information act request to TDCJ (following another one, under separate cover, from the Office of Inspector General), stating that, "Pursuant to a diligent search of agency records, we have determined that no responsive information is maintained by the TDCJ in regard to your request. Here's what I had asked for:

• Any TDCJ policies regarding recording of conversations during death-row inmates' non-attorney visitations, including any policy describing how often recording occurs, under what circumstances, whether every call is recorded, what is done with the recordings, who has access to them, how long they're kept, what documentation must be maintained, etc..
• Any log or record of recordings from visitations for now-deceased death row inmate Cameron Todd Willingham.
• Any log or record of who has accessed or listened to recordings from visitations for now-deceased death row inmate Cameron Todd Willingham.
• The tape or audio file (in whatever format it's maintained in) of any recorded visitations with Cameron Todd Willingham during the month before his execution.

So we are to understand from this response: First, TDCJ has no written policy regarding recording death-row inmates non-attorney visitations. Really? They're set up to record every conversation if they choose to do so. Can it possibly be true that there's no policy on when and how that's done? Do they really just make it up on a case by case basis as they go along?

Second, taking them at their word, either TDCJ did not record any visitations with Willingham - including the one where his ex-wife has given conflicting accounts regarding whether he confessed - or they do not keep logs of whether or not inmate visits are recorded.

The latter explanation seems hard to swallow - there are too many security reasons you'd want to record death-row inmates' conversations and later be able to recall the recording. The example of Richard Tabler comes to mind, who smuggled letters out of prison that contain threats against State Sen. John Whitmire's family. Do you really not want to monitor that guy's non-attorney visitations? Can it possibly be true that there is no policy regarding when, how, and at whose instigation that should happen?

That's what I'm to believe from a letter dated Nov. 10 from Patricia Fleming, Assistant General Counsel to TDCJ. Maybe that's a question the Senate Criminal Justice Committee should ask the next time they haul Brad Livingston in front of them to talk about contraband and death row security.

Appleseed rightly sues to make police use-of-force policies public

I'm pleased to learn that Texas Appleseed has filed suit challenging the Texas Attorney General's rulings on keeping use of force policies closed for police stationed at schools. (I'd encouraged Appleseed to go to court over this in a prior blog post.) Reports the San Antonio Express News:

Texas Appleseed, which rallied against the Texas Youth Commission's pepper spray-usage policy two years ago, is now looking into pepper spray and Taser usage in public schools.

The nonprofit filed open-records requests with 24 school districts across Texas in July asking for the use-of-force policies. About half the districts complied.

Among those that didn't were SAISD and Spring Branch ISD — both of which had suits filed against them Thursday.

Leslie Price, spokeswoman for SAISD, said Friday the district hadn't yet been informed of the suit but that the disagreement is nothing new.

The Texas Attorney General's Office issued an opinion in October that the school district didn't have to fully comply with the request because some law enforcement details are exempt from open-record laws.

Problem is, the AG is relying on an overbroad interpretation of the Public Information Act to claim that key portions of police use of force policies are closed records. But in fact, there appears to be no solid basis in the law for that view. Proponents of opacity try to skirt around the plain language of the statute by saying release of policies would "interfere with law enforcement." But that's not an exception to the open records act!

Agencies seeking to close these records rely on Sec. 552.108 of the government code, which states in relevant part that agencies may keep from disclosure any information which might "interfere with the detection, investigation, or prosecution of crime."

Use of force policies don't fit any of those three categories. They involve how police interact with suspects during arrest. By the time of an arrest, a crime has already been "detected." Similarly, the arrest process does not implicate the "investigation" of crime: When use of force is part of the investigatory process, that amounts to torture which is clearly illegal. And only prosecutors can prosecute, so policies about how police conduct arrests simply have nothing to do with the prosecution of any alleged underlying crime.

I'm not an attorney so maybe I'm missing something. I'd appreciate anyone who thinks otherwise to present an argument in the comments regarding how releasing police use of force policies could possibly "interfere with the detection, investigation, or prosecution of crime" as described in Govt Code Sec. 552.108. I just don't see it, and I'm hopeful a district court will agree and enforce the plain language of the Texas Public Information Act.

Judge Sam Sparks: Parole chief Rissie Owens is "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed"

US District Judge Sam Sparks refused to hold parole board chair Rissie Owens personally liable, as a jury verdict would have him do, for applying sex-offender registration to Texas parolees without even minimalist due process. But he called her out for violating parolees' civil rights in just about the harshest terms imaginable and ordered the state to pay six-figure legal fees, reports the Statesman's Mike Ward ("No liability for parole chief," Nov. 13):

The Tuesday decision absolves Texas Board of Pardons and Paroles Chairwoman Rissie Owens of personal liability in actions against Ray Curtis Graham and still leaves state taxpayers liable for paying Graham's legal fees, which are estimated at more than $100,000.

In his new order, Sparks wrote that Owens has been aware of problems in the parole system but did nothing until the court ordered her to do so.

"Her inattention is mystifying, and it shows her to be some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed,' " Sparks wrote, quoting from another court decision in a related case.

Even so, Sparks said, "her inaction, however abstruse, does not make her personally liable in this case." He left intact the portion of the verdict that determined that Owens and state Parole Director Stuart Jenkins had violated Graham's right to due process. Owens could not be reached for comment.

It's not just Rissie Owens, wrote Sparks in a 32-page order, but "The [Parole] Board as a whole seems to regard the procedural due process rights at issue ... as annoying pests that plague and torment it through no fault of its own." Yikes! I'd be pretty nervous if a federal judge were that mad at me!

A very important distinction

The New York Times clarified an important distinction in a correction to a recent story about the Innocence Project at Northwestern University:

Correction: November 1, 2009
An article last Sunday about the Medill Innocence Project, in which students at Northwestern University’s journalism school scrutinize the work of prosecutors and the police, misstated part of the name of a group at the university’s law school that has worked with the students. It is the Center on Wrongful Convictions, not the Center for Wrongful Convictions.

That's one of the all-time best corrections, ever!

This blog post is brought to you by the Center for Conviction and Punishment of the Actually Innocent, which is not affiliated with the Center for Wrongful Convictions.

Buddhism in Texas prisons

One usually thinks of prison ministries as a Christian or perhaps an Islamic calling, but according to an informative article by Zen Zheng in the Houston Chronicle ("Cultivating her faith," Nov. 12) "Buddhist volunteers work in eight of 113 state prisons." Buddhist prison ministries are spearheaded by Myokei Caine-Barrett, a Texan who was introduced to Buddhism in El Paso and Houston. She has performed weekly services at TDCJ facilities since becoming ordained in 2007.

New rehab beds coming on line, but TDCJ still struggles with contraband

After the segment of Tuesday's Senate Criminal Justice Committee on the Forensic Science Commission, I left along with the entire press corps to attend Rodney Ellis' press conference with Barry Scheck of the national Innocence Project. The rest of the senate committee and a few interested House members, however, stayed to listen to TDCJ Executive Director Brad Livingston give a brief report on contraband interdiction and the rollout of new rehab beds authorized during the last two sessions. This morning I went to the video archives of the Texas Senate web site to watch the portion of the meeting I missed. (I love the Internets!) Here's a summary:

Livingston reported that TDCJ still struggles with contraband, despite a so-called "zero tolerance" policy that's been in place for the past year. In mid-September, he said, TDCJ put 14 units (out of 112) on lockdown/ shakedown for 10-14 days, targeting facilities where contraband was considered most prevalent. During that lockdown they found 76 cell phones, 12 tobacco items, 22 prisoners with marijuana, and five with caches of money.

To put that in perspective, he said, through Oct. 31 of this calendar year, TDCJ found 950 cell phones throughout the system. They also intercepted another 324 cell phones before they reached the offender (which is a new statistic they're now categorizing separately).

Livingston said TDCJ has scaled back pat searches for staff entering most facilities, only doing it randomly instead of for every entrant. He didn't clarify with what frequency is "random," but they still pat down staff 24-7 at the 14 targeted units. At several facilities, he said, TDCJ has added metal detectors and staff to search for incoming contraband.

Whitmire asked a great question about searching employees as they leave work instead of just going in. Livingston said that happens during lockdowns but otherwise only on a "random" basis - again, never specifying how often "random" is in practice. Whitmire was specifically referencing a letter smuggled off death row that notoriously included a threat to his family, but said he also was concerned with staff leaving the facility with cash, communications or other contraband that was at least as problematic as what they brought in.

There was another interesting exchange in which Whitmire asked Livingston whether any units had structural deficiencies that contributed to contraband smuggling. Livingston couldn't name any, but Whitmire said he was specifically referencing a unit in Mineral Wells where a short wall is close to the road and contraband was thrown over so frequently the prison put up a golf net behind it. Livingston said cautiously that the golf net had reduced the problem of throw overs, but Whitmire told him that's not good enough. '"If you have a structural problem or manpower problem, make that a priority," said the Senate dean. I wonder how many other facilities have "structural" flaws, as Whitmire put it, that make them vulnerable to contraband smuggling?

The committee also received a brief update on the status of the prison population and new rehab beds authorized by the last two Legislatures. Livingston pointed out that at the end of August TDCJ was able to cancel/not renew contracts with county jails for extra beds because they didn't need the space. The prison population, he said, has been "very flat."

Rehab programs authorized by the Legislature, said Livingston, are all in place or coming online soon. Of those, the one with the furthest to go are the 1,400 Intermediate Sanctions Facilility (ISF) beds authorized in 2007. Of those, 549 beds are operational; 851 more are under construction by thevendor and should be operational by 2010.

Of 1,500 newly authorized SAFP (substance-abuse treatment) beds, 920 are operational, with the remaining 560 beds being phased in this fall. All the new SAFP beds, he said, should be operational by February. Finally, 100 of 300 new halfway house beds are still under construction. Livingston expects these to open by spring 2010.

Rep. Jim McReynolds asked about staffing, and Livingston said their guard vacancy level was as low as it's been in 10-15 years: About 1,053 vacancies, currently. (A combination of the recession and front-end pay incentives has dramatically reduced that number from more than 3,700 just a short time ago.)

Senator Kel Seliger asked how quickly TDCJ typically moves prisoners from county lockup to TDCJ units after they've been convicted, saying he'd heard from a county official in his district that it was taking 45 days. Livingston said that 45 days was the maximum time allowed by law, but that the average delay statewide is only 21-22 days.

After these perfunctory updates Chairman Whitmire closed the meeting.

Why do Americans murder?

A New Yorker book review by Jill Lepore explores the question "Why is American history so murderous?" Fascinating stuff. Here's her comparison (based on information in several books reviewed together) of US homicide rates with European nations:

In Europe, homicide rates, conventionally represented as the number of murder victims per hundred thousand people in the population per year, have been falling for centuries. Spierenburg attributes this long decline to what the German sociologist Norbert Elias called the “civilizing process” (shorthand for a whole class of behaviors requiring physical restraint and self-control, right down to using a fork instead of eating with your hands or stabbing at your food with a knife), and to the growing power of the centralizing state to disarm civilians, control violence, enforce law and order, and, broadly, to hold a monopoly on the use of force. (Anthropologists sometimes talk about a related process, the replacement of a culture of honor with a culture of dignity.) In feuding medieval Europe, the murder rate hovered around thirty-five. Duels replaced feuds. Duels are more mannered; they also have a lower body count. By 1500, the murder rate in Western Europe had fallen to about twenty. Courts had replaced duels. By 1700, the murder rate had dropped to five. Today, that rate is generally well below two, where it has held steady, with minor fluctuations, for the past century.

In the United States, the picture could hardly be more different. The American homicide rate has been higher than Europe’s from the start, and higher at just about every stage since. It has also fluctuated, sometimes wildly. During the Colonial period, the homicide rate fell, but in the nineteenth century, while Europe’s kept sinking, the U.S. rate went up and up. In the twentieth century, the rate in the United States dropped to about five during the years following the Second World War, but then rose, reaching about eleven in 1991. It has since fallen once again, to just above five, a rate that is, nevertheless, twice that of any other affluent democracy.

That puts a bit of a different spin on the debate of whether and how much the death penalty acts as a deterrent, doesn't it, when nations that have abolished capital punishment deter murder with greater success?

Lepore also provides an able overview of the antebellum use of capital punishment and three-strikes laws in the United States, including history I hadn't seen before:

Capital punishment has been on the books in Connecticut since 1642. Three strikes has been tried before, too. In Colonial America, many crimes, including murder, were punishable by death and, for lesser crimes, Connecticut, like many colonies, mandated the death penalty for third-time offenders. That began to change on September 7, 1768, when a burglar named Isaac Frasier was hanged in Fairfield. Frasier had shown early evidence of a “thievish Disposition.” “Men go from one degree of wickedness to another,” the town’s minister said in a sermon at the gallows titled “Excessive Wickedness, the Way to an untimely Death.” Convicted of burglary in New Haven, Frasier was whipped and branded and had his ears cropped. Caught again in Fairfield in 1766, he received the same punishment “and was solemnly warned . . . that death would be his punishment on a third Conviction.” When Frasier robbed another house, he was sentenced to death. “The Government of Connecticut have always been remarkably tender of putting persons to Death,” one observer noted. But when Frasier applied to the legislature for clemency, he was denied. Said the pastor at the gallows, “Justice requires that you should suffer.”

An outcry followed. Two weeks after Frasier’s death, a Hartford newspaper published an essay called “An Answer to a very important Question, viz. Whether any community has a right to punish any species of theft with death?” The writer’s answer—an emphatic no—borrowed extensively from Cesare Beccaria’s treatise “On Crimes and Punishments,” published in 1764. Beccaria, an Italian nobleman, argued against capital punishment—which was, at the time, widespread in Europe, too—on two grounds: first, in a republic men do not forfeit their lives to the government; and, second, capital punishment does not deter crime. Beccaria argued (and Kleiman has merely revisited that argument) that punishments, to be effective, must be swift and certain but not necessarily severe. Punishments, he insisted, should be proportionate to crimes, whose dangerousness could be measured, in “degrees,” by their injury to society. For the crime of murder, Beccaria considered life in prison to be both more just and a more effective deterrent than execution.

The first American edition of Beccaria’s treatise was published in 1777, and it reached a wide audience in Connecticut beginning in 1786, when it was serialized in a New Haven newspaper. “If we glance at the pages of history, we will find that laws, which surely are, or ought to be, compacts of free men, have been, for the most part, a mere tool for the passions of some,” Beccaria wrote. This argument held particular appeal for a people who had just finished waging a war against the passions of King George; adopting Beccaria’s recommendations came to seem, in a fundamental sense, American, as if the United States had a special role to play, as a republic, in the abolition of capital punishment. In 1784, the Yale senior class debated whether the death penalty was “too severe & rigorous in the United States for the present Stage of Society.”

In the seventeen-nineties, five states abolished the death penalty for all crimes except murder. By the eighteen-twenties, all Northern states reserved capital punishment for first-degree murder. When incarceration replaced all corporal and most capital punishment, Americans built prisons, and sentenced criminals to jail time. In 1846, Michigan became the first state to abolish the death penalty.

Most of the arguments offered for WHY the United States has higher murder rates seem a little half-baked (a prevalent European theory holds that Americans gained political freedom before we were civilized), but the higher rates are a long-term reality and it's an interesting question why Americans kill each other more often? Go read the whole piece for a taste of the variety of theories offered by different authors to explain the question. Certainly IMO there's a cultural element to it - a distinctly American preference for "honor" over "dignity," as Lepore put it. She also suggests that the wider availability of guns in America contributes. But none of these theories either a) are verifiable or b) completely explain the long-term data, even if true.

Why do you think Americans kill each other more often than citizens of other affluent democracies?

'Constables Gone Wild'

The title of this post is the headline to a Dallas News editorial about evidence that two Dallas constables misled investigators when they claimed not to have contracts with a particular towing company. An attorney for the towing company was able to produce the contracts with the constables' own signature on them. I agree with every word of the Dallas News editorial (something I don't often say), but especially this conclusion:

No one in this dispute has a shred of credibility left. Not the commissioners who recently approved the copying of the hard drive of one the constables. Not the district attorney who has been coy about whether his office is investigating. Not the constables who suddenly have signed towing contracts that a few weeks earlier supposedly didn't exist. And certainly not the towing company, which the Texas Department of Licensing and Regulation is investigating for possible administrative violations.

There are lots of words to describe this debacle. Straight shooting isn't one of them.

In a recent reader poll, 67% of Grits readers thought constables' offices should be abolished (though the Texas Association of Counties disagreed).

About the only positive you can say about the fiasco in Dallas is that it's re-raised debate over just what the hell these obscure, antiquated offices are doing in the modern era. In larger counties like Dallas where, unregulated and unaccountable, they've taken on workaday policing duties, the short answer IMO is "tasks that should be performed by someone else."

Petty cash to informants: Routine investigative technique or inducement to perjury?

One of the ways I keep Grits a (relatively) manageable project is by remaining geographically limited, so I haven't followed in more than a cursory fashion the efforts by Illinois prosecutors to legally harass Northwestern University students working with that university's innocence clinic. But given this blog's interest in informant-related issues, I laughed out loud when I read the latest drummed up charges by prosecutors in that case against students from the Northwestern Innocence Project:

According to the court documents, Tony Drakes, one of the witnesses the students believe was involved in the 1978 murder of security guard Donald Lundahl, told state investigators that he "gave the students a video statement for money" and recanted the videotaped statement.

In the prosecutors' documents, Drakes alleges that Sergio Serritella, the private investigator working with the students, gave a taxi driver $60 for what was estimated to be a $6 cab ride home to a bus station near where the 2004 interview took place.

Drakes says the the cab driver gave him "the change" -- about $40 -- which Drakes says he later spent on crack cocaine.

The prosecutors admitted they also paid Drake $10 for gas money in exchange for meeting with them, but that, obviously, is completely different, right? They assure us, harrumph harrumph, that it undoubtedly is.

I find these charges utterly laughable given the day-to-day practices of police and prosecutors regarding so-called "confidential informants." In Dallas, the snitch at the center of the fake drug scandal was paid about $200,000 in fees by police for helping set up two dozen innocent people based solely on snitch testimony and faked field tests for drugs by police. (With what appeared to be overwhelming evidence, nearly all the defendants, mostly non-English speaking legal and illegal residents, took pleas that included deportation.)

Informants get paid cash all the time. But even more than that, they're often granted massive reductions in their own sentences in exchange for testimony - an invaluable commodity that's routinely exchanged for testimony in American courts. entering into a so-called "5-K" snitch agreement with the US Attorney is the only method on the books for securing a downward departure from federal sentencing guidelines (though after a series of recent cases judges now have discretion for downward departure if they explain their reasons). And snitching is also the only ways federal prisoners already locked up can get out sooner than their day for day sentence.

As far as this example goes, the investigator gave the $60 to the cab driver, not the informant. But even if it was intended that the witness would benefit, that kind of thing happens every day when police are making cases. Money in drug stings falls inadvertently (wink, wink) into informants' hands all the time. (See this petty but typical example.) Indeed, one wonders what if any inducement prosecutors gave this fellow, who is now sitting in jail, to change his story, and whether they taped their interview with the witness the way the Innocence Project students did?

Indeed, if $40 could buy false testimony, as these prosecutors allege, then a large amount of testimony in criminal courts should be similarly called into question. I don't know what Illinois' open records laws are like, but it'd be interesting if somebody asked for how much was spent in recent years by the DA and police departments in their jurisdiction for informant payments. I'll bet it's a bloody helluva lot more than $40.

Judging from afar, with no inside knowledge, these don't appear to be serious allegations so much as a trumped up harassment and PR campaign by a District Attorney who's tired of seeing his old cases unraveled by Northwestern students.

Restorative Justice in Schools

Via The Crime Report:

A new publication by the Illinois Criminal Justice Information Authority provides suggestions for how schools can address behavioral issues and rule-breaking from a restorative, rather than punitive, standpoint. “Implementing Restorative Justice: A Guide for Schools,” finds that “there is no evidence that zero tolerance policies improve student behavior, the school climate or overall school safety,” and encourages school officials to counter the trend of criminalizing school misconduct with such techniques as separating the deed from the doer and using misbehavior as an opportunity for learning.

Click here to read the full report.

'Unanalyzed evidence held by law enforcement agencies'

As questions continue to arise about the quality of modern forensic sciences, the National Institute of Justice in a new report (pdf) about "Unanalyzed evidence held by law enforcement agencies" raises questions about when and how forensics are used. According to the NIJ executive summary:

More than 2,000 state and local law enforcement agencies responded to a survey [1] to:

1. Estimate the number of unsolved homicide, rape and property cases [2] nationwide that contain forensic evidence that has not been submitted to a crime laboratory for analysis.
2. Determine the existence of policies and procedures regarding the processing, submission to a lab and retention of forensic evidence.

The survey showed that agencies:

• Had not submitted forensic evidence (including DNA, fingerprints, firearms and toolmarks) to a crime lab in:
  • Fourteen percent of open, unsolved homicides.
  • Eighteen percent of open, unsolved rapes.
  • Twenty-three percent of open, unsolved property crimes.

There are reasons why a law enforcement agency may not submit forensic evidence to a lab. The evidence may be considered not probative, charges may have been dropped or a guilty plea entered. However, the researchers who conducted the NIJ-funded survey also concluded that some law enforcement agencies may not fully understand the value of evidence in developing new investigative leads.

Learn more about why evidence may not have been submitted.

The survey also revealed that:

• Only four out of 10 law enforcement agencies have a computerized system for tracking forensic evidence either in their inventory or after it is sent to the crime lab. Learn more about the use of computerized systems.
• Policies and practices for evidence retention varied widely from jurisdiction to jurisdiction.Learn more about policies and practice.
• There are steps that law enforcement agencies, forensic laboratories and prosecutors can take to improve the use of forensic evidence. Read a summary of the study recommendations.

The survey did not determine:

• How many of the open cases would be solved or yield investigative leads if evidence in them were to be sent to the lab.
• The number of cases in which evidence was analyzed in the past, but which now, with more advanced technology, might be solved or yield investigative leads. Read more about the potential value of the evidence.

The survey found 93% of agencies have no cold case squad assigned to check DNA samples in old cases. They also found 38% of agencies have no written policies about retention of biological evidence even though 80% of surveyed agencies were the primary entity responsible for storing that evidence. Fifty seven percent of agencies had no computerized system for tracking evidence in their possession (pp 49-51 in the pdf).

This research implicates efforts by innocence projects to find cases where DNA evidence could exonerate defendants in older cases, as well as efforts by police cold case divisions to identify the guilty from long-ago crimes. In practice, often agencies don't retain evidence from old crimes or fail to test (and even fight testing) evidence in their possession. I'm glad to see the feds starting to take a more comprehensive look at the practical issues surrounding these important questions.

Defiant John Bradley rebuffed on secrecy pleas

Blogs play different roles in different types of news stories. Frequently Grits covers topics that receive very little attention from the press, in which case simply reporting what goes on provides a meaningful service. But some stories, like Gov. Rick Perry's replacement of the Texas' Forensic Science Commission chairman with Williamson County District Attorney John Bradley, take on a media life of their own. In those cases, nobody really needs me to give the blow by blow.

Yesterday's Texas Senate Criminal Justice hearing was attended by a full-blown media gaggle, whose coverage I compiled as comprehensively as I could at the end of this post. The whole thing was well covered in the MSM, so I won't give a soup to nuts account here, but rather offer my own after-the-fact impressions. All the usual suspects were there: Between the press, legislators, staff and the audience, it seemed like I knew about 2/3 of the people in the nearly-full hearing room, on both sides of the debate. (Even Judge Barbara Hervey from the Court of Criminal Appeals was kind enough to stop and say "hello.")

Mr. Bradley was the sole witness at the hearing. He seemed to thrive in the limelight with his ego swelling more and more as his performance wore on, to the point at the end of near-open defiance toward Sen. Rodney Ellis and state Rep. Tommy Merritt, the chairman of the House Law Enforcement Committee who sat in on the hearing. In many ways, it was quite an arrogant performance - answering nothing concretely and accusing (implicitly or explicitly) anyone who disagreed with him of bias. Several times Bradley spoke of the Innocence Project with a disdainful sneer as a "New York nonprofit," as though Jeff Blackburn of the Innocence Project of Texas weren't sitting just six feet behind him in the audience. As though Texans don't really care about innocent people locked up in prison.

To dredge up a quote from an old Terry Allen song permanently ensconced in Grits' sidebar, Mr. Bradley, "I don't wear a Stetson, but I'm willing to bet son that I'm as big a Texan as you are."

Bradley's main theme, to which he returned several times, was that the Forensic Science Commission had been "hijacked" by people with anti-death penalty agendas. I kept wondering which statewide GOP official who makes appointments to the commission - Rick Perry, David Dewhurst, or Greg Abbott - does he believe aided and abetted this "hijacking"? Apparently Gov. Perry's original appointees were to blame, since getting rid of them, we're now told, will somehow result in depoliticizing and professionalizing the commission. Sen. Whitmire and others reminded Bradley that those "third parties" of whom he was so dismissive were actually representatives of the public, but that did nothing to mitigate the DA's disdain.

Bradley claimed he's not a political "pawn" (perhaps he considers himself a bishop, knight or a rook), but his main agenda was clearly to justify an open-ended delay in pursuing the commission's pending work. Expect the denouement of the Todd Willingham case to be delayed many, many months - it could easily be after the 2010 general election before the FSC takes it up again, to judge by the timeline laid out yesterday. Bradley says the commission first needs to establish rules, which they'll begin to discuss at their January meeting. Assuming the earliest they might vote on rules would be at their next quarterly meeting, more likely even later, new rules won't be in place until, at the earliest, next fall to consider pending business.

Steve Saloom of the national Innocence Project said at a press conference after the hearing that the commission's enabling legislation does not authorize it to create rules. He later elaborated that former Chair Sam Bassett asked the Attorney General's representative who attended every FSC meeting whether or not they should create written rules, and the AG said they weren't authorized to do so. The reason, said Saloom, was that "The Legislature didn't want to create a behemoth bureaucracy. They wanted it to be composed of experts, and they wanted it to be lean."

Saloom added, "Does [Mr. Bradley] want to add a layer of bureaucracy? ... or is he just doing this to stall?" Whatever his intent, there can be no argument that the outcome is to stall.

Despite the obvious delaying tactics, the good news was that no one on the Senate committee seemed sympathetic with Bradley's request to create exceptions to the Public Information Act for FSC investigations, much less allowing the commission to meet in secret. Whitmire said his intent in authoring the bill was for the agency to be "very transparent, very public." Even Sen. Dan Patrick told Bradley he wants to see "transparency in all the work that you do."

Sen. Whitmire made a point that I brought up yesterday on Grits - the commission's role is to examine the science, not investigating and punishing individual wrongdoing like a law-enforcement or regulatory agency. Oddly enough, Bradley agreed (!), but it's easy to say so when his actions contradict that sentiment: Bradley told the committee he'd asked the Texas Rangers to suggest secrecy standards for investigations, even though the commission is investigating science, not necessarily criminal conduct. As the Houston Chronicle's Rick Casey pointed out, "the job of the commission is to investigate science, not crime. The investigative procedures for that should be developed by forensic scientists, not members of a police agency that will be subject to the commission's review."

Sen. Rodney Ellis gave out some data on arson cases I hadn't heard before: He said 742 people are currently locked up in TDCJ for arson, with 275 per year on average convicted statewide on felony arson charges. Ellis said there's no way to know right now if state of the art arson science had been used in all of those cases. (The short answer is: probably not, especially the farther back you look.) According to insurance industry data, Ellis said, about 43,000 fires per year nationwide result from arson.

Overall, the committee appears committed to increasing oversight of the FSC and making sure Mr. Bradley doesn't succeed in making the agency secretive and unaccountable. Of all the comments from senators, perhaps the most telling was one of the most low-key from Sen. Glen Hegar, a Republican who told Bradley he took the Senate's role confirming Governor's appointees "very seriously" and reminded him that they'd all be watching. I took away from the hearing that there's a bipartisan consensus on the committee, at least for now, that Texas needs to confront bad forensics instead of bury the problem under a mountain of bureaucracy, procedure and doublespeak. Mr. Bradley, by contrast, appeared to be promoting quite a different agenda. Time will tell how it all plays out.

When bringing Christianity into the jury box, bring all of it

I've ignored until now a Texas case receiving international notoriety in which jurors consulted some of the more punitive verses in the Christian Bible during deliberations in a death penalty case. It's been getting wide play elsewhere because it hits on two culture-war touchstones - the death penalty and church-state separation - that this writer finds boring, dull and repetitive.

However, this morning I ran across an angle on the case that interests me more. Scott Greenfield at Simple Justice has a post on the case, describing how the 5th Circuit agreed the scripture constituted an "external influence" on the jury but concluded that "under the "highly deferential standard" by which federal courts should review state court decisions, [the defendant] had failed to prove that he had been prejudiced by this unconstitutional juror conduct." SCOTUS recently declined to hear the matter, so the Bible-influenced verdict stood and the defendant was executed last week. A commenter at Simple Justice, Wayne Clemons, points out that:

Reading a few verses down, the jury would have found:

"Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness."

It's not just murder, of course, for which the Bible would require mulitple witnesses: "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." (Deuteronomy 19:15)

It's funny (and not ha-ha funny) how those most aggressively positing a biblical, scriptural basis for capital punishment often appear unconcerned at such biblical due process niceties.

Recently I wrote about a capital murder case in which the only evidence against the defendant was a jailhouse snitch and a scent lineup by Fort Bend County Sheriff's Deputy Keith Pikett's dogs. So I guess that's two witnesses, if you count the dog. But really it's none, since the snitch didn't actually see the crime and was compensated by the state with official leniency for his testimony.

In reality, our judicial system simply does not require proof "beyond a reasonable doubt," even if that's the hackneyed catch phrase with which juries are instructed - not when a jailhouse snitch and an accusation from a dog can get you a capital murder conviction (thankfully in that case the jury gave sentence of life without parole). Until Texas became one of the only states to change its law (in 2001), thousands of drug defendants were convicted based solely on the testimony of an undercover snitch, many of them by drug task forces like the ones memorialized in book and film in Tulia and Hearne. In non-drug cases, that's still legally enough to convict.

The real, workaday standard of proof typically employed in criminal cases is closer to what lawyers would call a "preponderance of the evidence" - based on the evidence heard by the jury, guilt is more likely than not, but by no means certain. That's about all you can say about a case made on testimony by a jailhouse snitch and a dog. There's absolutely no way under those circumstances that all "reasonable doubt" could be extinguished. Ditto for the Tulia cases, where testimony from one lying cop was enough to convict some three dozen people.

Courts routinely allow convictions based on a single eyewitness' identification, even when the witness had never seen the defendant before the encounter. But research shows the error rates in such identifications are unconscionably high, particularly when police don't use best practices and contaminate eyewitness evidence during a lineup.

As I said in the comments at Simple Justice, "It wouldn't matter if you kept the Bible out of the jury room. Folks who believe strongly that way can quote chapter and verse." But I also lamented "that VERY few Christians emphasize the 'two or three witnesses' requirement as strongly as the 'eye for an eye' stuff," even though "for Christians, the New Testament retains the former and rejects the latter." (See this discussion.)

I don't kid myself that jurors won't bring their religious beliefs with them into the courtroom - including those who believe in biblical infallibility, whose number in Texas are not insignificant. But I wish when that happens, Christian jurors would focus as much attention on the Bible's insistence the right person be punished as they do on Old Testament penalties.

RELATED: Three guys who couldn't be on a Harris County jury: Moses, Jesus and the Apostle Paul

Reducing forensic backlogs source of rare agreement at hearing

At the Texas Senate Criminal Justice Committee hearing today on the Forensic Science Commission, the only reform that new commission chair John Bradley truly sounded enthusiastic about was reducing backlogs at crime labs, so I was interested to see this report out today from CBS News analyzing backlogs in various states. Here's their excerpt about Texas:

At the state lab at the Texas Department of Public Safety there are 1,433 sexual assault kits on open, active cases waiting to be tested. In Houston there are 462 rape kits waiting for preliminary testing to see if there are any biological stains, and 237 kits waiting for DNA testing. The oldest kits date back to 2008. There are also 3,846 kits in storage that have not been tested.

A Houston Police Department spokesman told CBS the kits have not been tested because the kits are taken from victims where the identity of the suspect is not in question, where the department is not pursuing prosecution or the kits are provided by victims who later recanted.

On average in San Antonio the turnaround time for rape kits is 15 to 20 working days according to the San Antonio Police Department at a cost of $315 per kit. The department tells CBS they have 5,191 untested rape kits in storage.

Secrecy at forensic commission not justified based on weak investigative powers

I'm headed up to the capitol a little later this morning to watch the Texas Senate Criminal Justice Committee hearing on the Forensic Science Commission at 10 a.m., where new commission chairman and Williamson County DA John Bradley will explain to the committee why he shut down all commission activities immediately upon his appointment and henceforth wants to operate in secret. (Go here for a live feed of the hearing and a press conference by Sen. Rodney Ellis afterward.)

The Fort Worth Star Telegram has a preview story this morning about the hearing, quoting Sen. John Whitmire saying the FSC could emerge from this controversy stronger and more effective than ever. I hope so. At the same time, Bradley is already making obfucscatory claims that make me think his agenda is to conceal the truth and avoid debates over faulty forensics instead of encouraging reform. For example, he told Texas Lawyer recently:

“It’s not a good idea to conduct an investigation in a public forum,” Bradley says.

Other agencies that have an investigative function, including those in law enforcement, are protected from the Texas Open Meetings Act and the Public Information Act during their deliberations, Bradley says. When investigations are conducted in public, it is difficult to protect them from outside influences, he says. ...

“The commission’s work is focused on investigating and then deliberating on allegations of negligence and misconduct in the forensic science field,” Bradley says.

Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says.

Bradley is confusing the FSC with agencies that investigate individuals on allegations of negligence or misconduct. But this is a horse of a different color. Bottom line: The Forensic Science Commission is not a regulatory agency and has no power to punish anyone. Nobody's due process rights are implicated the way they are, say, when a police officer is investigated by Internal Affairs. The FSC exists to investigate the validity of forensic science and lab practices in Texas and encourage public debate, not to indict or accuse individual actors. It is weak by design, largely because Governor Perry opposed giving it any real power.

Mr. Bradley's excuses for seeking secrecy at the FSC don't hold water. Agencies like the Judicial Conduct Commission that evaluate specific allegations against individuals and have authority to punish them may justifiably maintain secrecy throughout their investigation, but the FSC possesses none of those types of powers. It's simply not a valid comparison.

Investigating people may justify secrecy. Investigating science requires openness.

RELATED: See a Dallas News editorial outlining their hopes for today's hearing.

UPDATE: I'll write up today's hearing tomorrow morning, but in the meantime here's some of the initial MSM and blog coverage:

• CNN: Texas execution probe won't be 'hijacked," new chairman says
  
• Dallas News: New head of Forensic Science Commission says he'll protect panel's integrity
• Texas Tribune: Forensic Science chairmen face off
  
• TPM Muckraker: Perry appointee in no rush to wade back into Willingham case
  
• Dallas Observer: In which Texas Forensic Science Commission chair calls out those with "agendas"
• The Contrarian: The Willingham Hearing
  
• Burnt Orange Report: John Bradley to serve as Rick Perry's puppet on Texas Forensic Science Commission

MORE:

• Houston Chronicle, R.G. Ratcliffe: Forensic panel's new chief says he's not pawn, and Rick Casey: New clues for forensic panel.
• Austin Statesman: Forensic comish needs rules
• See coverage from KXAN Austin.
• Daily Texan: Senate grills forensic science chair
• Dallas News Trailblazers blog: See competing contradictory written statements from Bradley and Sam Bassett