Panel on juvenile parole and reentry

At lunchtime today I attended a panel hosted by the Texas Public Policy Foundation regarding juvenile parole and reentry, focused on:

How can Texas enhance its approach to parole and reentry to break the cycle of youth crime so there are fewer victims and taxpayers pay less to re-incarcerate the same youths?

Featuring:

• The Honorable Jim McReynolds, Chairman, House Corrections Committee

• The Honorable Robert Eckels, Former Harris County Judge

• Cheryln Townsend, Executive Director, Texas Youth Commission

• David Reilly, Chief, Bexar County Juvenile Probation Department

TPPF's Marc Levin set the stage by describing the state's somewhat fragmented juvenile parole system, run by the state in larger jurisdiction and by contract, usually with local probation departments, in more rural areas. There are 1,700 youth on TYC parole; about 420 were revoked in 2009, making up 20-25% of new commitments.

Chairman McReynolds focused on a theme that recurred among the presenters, that planning for reentry couldn't begin early enough. It should begin, he said, on the first day of confinement. He focused on the need to implement and use risk and needs assessment tools, and said it "sets the child up for failure" to release them without adequate services in place for them to succeed.

Because incarceration in TYC costs $271 per day and juvenile parole costs $15, he said, there may be room to develop middle ground programming - a "halfway solution" - that's more resource intensive than parole but stops short of full-blown detention, at least 24-7. He particularly mentioned in-home treatment and counseling as well as mentoring as examples of "interim" approaches.

Juvenile probation chief David Reilly from San Antonio showed us recidivism data from the first year out of detention for youth in their area: Seventy percent or so didn't re-offend at all in the first year, and of those who did, the overwhelming majority did so during the first six months, which makes the reentry period and "aftercare" programs critical to determining success.

Reilly made the provocative point that recidivism is not always a bad thing, that it should not be considered universally a negative event and that it's not necessarily a sign the child is failing. Recidivism is a limited piece of data regarding what it can tell you, he said. We rely on it because it's easy to count, while we ignore assessing things about youth that may be more difficult to quantify.


Bexar County Juvenile Probation is partnering with TYC and a Baptist children's charity to create a one-stop center for accessing resources for at-risk youth. The program includes the concept of a "circle of support" in which they bring in the youth's family, mentors, teachers, church leaders, or anybody else who's important in the kid's life and get them to assist in the intervention in a structured way.

Former Harris County Judge Bob Eckels described his history with juvie justice programs as a legislator and county commissioners court judge, saying at one point that after a while it dawned on him that by the time youth entered the juvenile justice system, society had already failed them. He identified mental health treatment, drug treatment and family counseling as the areas where state investments could help locals keep kids in the community instead of sending them to TYC.

Finally, Cherie Townsend from TYC said that youth sent to prison in Texas today are not much like other youth or even other delinquents because recent reforms removed most of the less hard-core offenders from the system. Those who remain require more supervision, more services, are generally doing poorly in school (40% qualify for special education), and have often been victims of serious trauma including physical and sexual abuse, she said.

Townsend referenced TYC's reentry plan (pdf), which I'd not read but which merits a link for anyone interested. She reiterated McReynolds' point that "aftercare shouldn't be an afterthought," declaring their goal was to get to the point where youths reentry plans began to be legitimately formed right at intake, keeping the goal (successful reentry) in mind from the get-go.

Interesting panel, if nothing too groundbreaking. Marc Levin's been doing a great job shining light into dark corners of the justice system, and this is a particularly obscure and rarely considered topic that deserves more attention than it usually receives.

Correction: Insuring unlicensed drivers

Thanks to the reader who alerted me via email to an error I've been making fairly routinely when discussing the Driver Responsibility Program, including I fear in testimony earlier this week to the House Public Safety Committee. I've mentioned several times that insurance companies won't write policies to unlicensed drivers, arguing that when the state revoked licenses under the Driver Responsibility Program, it is increasing the number of uninsured drivers. But this reader forwarded me a scanned Greensheet advertisement promoting liability insurance for sale even if you don't have a driver's license. The ad was unclear and I've heard that statement so many different times from different sources, I was skeptical, so this fellow called the company, writing back a few hours later:

I just checked with the Baja agent to make sure the insurance available with “no license” applies to Texas registered cars in Texas. According to our conversation, if you tell the agent “no license” you can get this insurance. If you tell the agent you have a suspended license, they may put it down and there’ll be trouble with the state.

The part about "trouble with the state" still sounded like it might be illegal or somehow improper for those with licenses suspended because of the Driver Responsibility Program. So this morning I emailed Jerry Hagins at the Texas Department of Insurance Public Information Office who informed me:

A driver's license is not required, by statute, in order to purchase auto insurance, but practically speaking, most insurance companies require it in their underwriting guidelines. Some insurers may write a policy for an applicant with no DL but require that a Texas DL be obtained within a certain timeframe; or they may write a policy but add a surcharge; or they may write a policy if the applicant can verify driving experience via some other means. It may require a lot of shopping around to find an insurer who will write a policy to an applicant without a drivers license but it is permitted.

So there you have it. Most insurance companies won't cover you without a driver license, but with so many people out there with suspended licenses, clearly providers have arisen to service this risky submarket because of its shear volume and the potential for predatory pricing.

I'd never been under the impression, FWIW, that state law forbade such insurance products, I just couldn't imagine auto underwriters willing to write policies for people with licenses suspended for cause. My apologies for the error. Who'da thunk? I wonder if the rise of such insurance products is directly attributable to the advent of the Driver Responsibility Program and the proliferation of administrative license revocations as punishment?

Would diverting mentally ill from jails and prisons expand the economy?

Jackie Shannon, who is chairwoman of the Board of Trustees of MHMR Services in San Angelo, has a column today in the Standard-Times which opens with the question, "Would you be surprised to learn that the odds of a seriously mentally ill person being in jail or prison in Texas compared with being in a hospital are 7.8 to one?" She supplies some interesting analysis mostly culled from a recent study from the National Sheriff's Association - More Mentally Ill Persons Are In Jails and Prisons Than Hospitals: A Survey of States (pdf) -  but also included a provocative, perhaps counterintuitive argument on the negative economic impacts of failing to supply adequate mental health care:

Obviously it doesn’t make fiscal sense to cut mental health services and hospital beds if the result is higher costs to the prison system. So, what’s a Legislature to do?

Ray Perryman, of the well-regarded Perryman Group, in a January letter to state Rep. Jim Pitts, chairman of the Texas House Appropriations Committee, wrote:

“For several years, I have been studying the economic and fiscal issues surrounding treatment for mental health and substance abuse. Even beyond the human cost of such problems (which is enormous and defies measurement), the drain on the economy and the State’s social services system is also substantial.

“With inadequate treatment, overall costs can notably escalate; for those Texans without private insurance, obtaining treatment can be impossible due to financial constraints.

“In a 2009 study by my firm, (‘Costs, Consequences, and Cures!!! An Assessment of the Impact of Severe Mental Health and Substance Abuse Disorders on Business Activity in Texas and the Anticipated Economic and Fiscal Return on Investment in Expanded Mental Health Services’), my analysis revealed that mental health and substance abuse cost the state economy billions of dollars each year, and that increasing funding for these services brings a net payoff to the state. The components of this total cost include medical spending related to treatment, comorbidity and disability expense, lost income and productivity, incarceration, homelessness and mortality.

“Simply stated, if all of the costs and associated losses associated with these factors could be eliminated, the Texas economy would be approximately 10 percent larger than its present size. While such an outcome is not practical, finding cost-effective methods to reduce the incidence and severity of mental health and substance abuse problems is an important endeavor that can improve the state’s fiscal situation. Clearly, improving mechanisms to provide care to those in need is an important task.”

If Perryman's right, maybe the best wedge argument against slashing mental health services isn't merely sympathy for the plight of those in need. Maybe it's that doing so would harm economic growth while alleviating the problem would promote it.

Glut in private prison beds bodes ill for overbuilt county jails

Here's some bad news for all those counties that speculatively overbuilt their jails planning to profit from federal contracts: They've got tons of competition. The blog Texas Prison Bidness reports that private prison company CCA said on a recent conference call with investors that there are 12,500 unoccupied beds in its system.

Even worse news: There's little doubt CCA has more political clout in Washington to swing such federal contracts than does any county government in the market. I'm betting their beds will be filled before the feds start bailing out bad decisions by Texas counties.

This report also reminds me that cutting private prison contracts up for renewal may be one of the shortest distances to eliminating unneeded prison beds at the state level, with a budget crunch upcoming and the possibility of closing prison units on the table. TDCJ this year is renegotiating those private contracts, but they shouldn't conclude the agreements until the Lege has decided how many and which prison units it may need to close.

When will final TYC sex abuse trial begin?

I've got to agree with the Texas Civil Rights Project that it's long past time for the final trial to begin in the Texas Youth Commission sex-abuse scandals out in Pyote. Scott Medlock at TCRP blames state District Court. District Judge Jay Gibson for the delay, but the last judge assigned to the case, Bob Parks, wouldn't set the cases for trial, either. The conduct at issue now occurred six years ago and most of the evidence has been made public in the pages of the Texas Observer and the Dallas News more than three years ago. There have been many excuses offered for the delays, but we're reaching the point where tragedy transcends to farce. The AG has said they're ready to go. Vamos! Get on with it, already!

Privatizing jail healthcare

Nueces County outsourced their jail healthcare to a private company out of Alabama that issued a bid $1 million per year lower than their closest competitor, reports the Corpus Christi Caller Times. Presumably this includes mental health, judging from Naphcare's list of services covered on its website.

Naphcare also runs jail healthcare in Beaumont (Jefferson County) and quite a few other local jails and federal Bureau of Prisons facilities around the country, though it no longer performs any work in its home state after Alabama changed providers in the wake of widespread litigation. A quick search also identified a recent lawsuit out of Beaumont alleging a "Naphcare employee mistakenly gave [an inmate] an anti-psychotic drug instead of his usual blood pressure medication."

I've never comprehensively examined how jail healthcare is delivered around the state, but my sense is it's all over the map. Some counties have contracts with local hospitals, some provide it themselves, UTMB used to provide it at the Dallas County Jail (as it does at 80% of Texas prisons), and I don't know how many have privatized it as they've done in Corpus and Beaumont. Especially as it regards mental healthcare, I would fear privatizing might limit flexibility because the availability of mental health services influences so many inmate classification and housing decisions.

Earlier this year I read some remarkable horror stories published in the San Francisco Bay Guardian regarding privatized medical care at county jails in California that one hopes won't be replicated in Texas. Here's a notable excerpt:

The U.S. Supreme Court recently agreed to a hear an appeal by the state of California to the federal court ruling that substandard medical care in California prisons constitutes cruel and unusual punishment and necessitates the early release of about 40,000 prisoners. At the May 26 hearing, healthcare workers familiar with the interiors of county jails and state penitentiaries came forward with horror stories.

"Every week I receive at least one inmate who has an open gunshot wound. They have not seen medical care in the county jails," Dr. Elena Tootell, chief medical officer at San Quentin state prison, told committee members. "It's quite surprising to me that they send inmates with gunshot wounds to prison. They just walk off the bus. They often have paper towels stuck to their bodies, seeping the blood. And then we are obligated to take care of them. This does not happen from San Francisco County, I'm going to tell you that right now."

Tootell said she'd observed a significant difference between those counties using private firms and those using public health care. "They will have a fracture — they've never been splinted, they've never seen a doctor. They're on anticoagulation [medication], but haven't had their blood checked in weeks and have bruises all over their body."

Connolly echoed similar concerns. For example, she told the Guardian, she's found herself asking questions like, "You were on AIDS medication before you got arrested and now you're not?"

Susanne Paradis, a healthcare research contractor with SEIU Local 1021, rejects the premise that the same services could be provided at a lower price. Under a private model, she says, the priority is to keep costs low — and that means doing less.

A key issue, Paradis said, is that private firms tend to rely more heavily on licensed vocational nurses (LVNs) — lower-paid medical staffers who aren't trained to assess patient's medical needs and cannot administer the same care that registered nurses (RNs) can. Using PHS data, Paradis found that in Alameda, there is one RN for every 92 inmates, compared with one RN per 32 inmates in San Francisco.

"An RN has the ability to assess, observe, and determine if there's emergency care needed," Paradis explained. "An LVN does not have the ability to do that."

John Poh, a nurse practitioner stationed at a jail in San Francisco's Hall of Justice, explained the difference this way: "The more RNs you have working for you, the fewer deaths you have."

The story about county jails leaving gunshot wounds untreated bespeaks of jawdropping negligence of a scope I've ever heard of in Texas. But of course, the trend of reducing the number of RNs isn't limited to either California or private companies: UTMB recently did the same thing at the Texas state prisons where they provide care.

In any event, this is an area where there are no good solutions - inmate healthcare is costly and if it's not provided at adequate levels, litigation and a few expensive cases could quickly outdistance the $700K Nueces County will save on the Naphcare contract.

The Supreme Court has dictated that whenever the state chooses to take someone's liberty, it's obligated to provide healthcare. Bottom line: If counties can't afford to provide healthcare for all the inmates in their county jail, the best solution isn't to cut corners on medical services but simply incarcerate fewer people in the first place.

Do traffic stops reduce calls for police help?

The abstract of this recent paper offers up a suggestion with potential public safety implications:

Using data from the Police–Public Contact Survey (PPCS), the current study examined how experiencing traffic stops affect the likelihood that Whites, Blacks, and Hispanics will contact the police for services. First, experiencing one or more traffic stops in the past year significantly decreased the likelihood of contacting the police for assistance and to report a neighborhood problem, net of other demographic characteristics. Second, traffic stop experiences had similar effects on Whites, Blacks, and Hispanics, each group less likely to have contacted the police for assistance and to report neighborhood problems if they had experienced one or more traffic stops in the past year. This study also discusses the reasons why experiencing traffic stops are related to contacting the police for help and provides some implications for police–community relationships. 

The relationship observed raises confounding public policy questions. If there is a tradeoff between traffic enforcement and increasing the likelihood citizens will report crime, which is more important?

I was interested to read their assessment that "Calling the police is a highly discretionary act on the part of citizens. The NCVS has consistently found that citizens call the police to report crime in only about 37% of possible situations." The dynamic of when and why police are called and the crimes non-criminal members of the public choose not to report is an area where I've seen little research.

Researchers found that "traffic stop variables had the most important and consistent effect on reporting neighborhood problems across racial categories. In other words, regardless of race, those experiencing a traffic stop were significantly less likely to report neighborhood problems to the police."

Particularly curious, the effect was more pronounced among white folks than blacks: "Non-Hispanic Whites were significantly less likely to contact the police for assistance/information compared to non-Hispanic Blacks when they had experienced more than one traffic stops in the past 12 months."

The authors failed to propose a definitive cause of this correlation, offering several unproven (and relatively unsatisfactory) hypotheses to explain the data, but "suggest that traffic stops are likely to undermine positive relationships between citizens and the police." They note that:

Traffic stops are only one form of police crime fighting, but at the same time, the PPCS data indicate that traffic stops represent about half of all police citizen contacts and thus are likely to have a significant impact on both citizen attitudes and behavior toward the police, particularly when it comes to having confidence in the police and trusting them.

I've downloaded the math-heavy paper, and may have more to say once I've digested it.

Via The Crime Report.

DPS Director: No public safety benefit from Driver Responsibility Surcharge

At the House Public Safety Committee hearing today, state Rep. Stephen Frost asked Department of Public Safety Director Steve McCraw whether there is any evidence that Texas' Driver Responsibility Program (DRP) improves public safety or has increased the number of drivers with insurance. McCraw's answer: "No sir, not at all." No hesitation. No equivocation. From his perspective, this is merely a revenue generator. It was a rather startling moment.

In response to Frost's queries, I put in a card at the last minute and clarified for the members that all of the 1.2 million drivers who lost their licenses because of the DRP were by definition uninsured because they couldn't purchase insurance without a valid license. I also relayed some information that was included in written testimony (which I helped prepare) on behalf of the Texas Criminal Justice Coalition regarding the societal costs in safety and treasure of creating that many additional uninsured drivers:

The 1.2 million Texas drivers who have lost their licenses over surcharges cannot buy insurance until their fees are paid, but large numbers (if not virtually all) of them continue to drive.

Particularly problematic, DWI defendants who lose their license and insurance may also continue to drive, and if they harm someone the DRP makes it less likely they will have insurance to cover the damages. Since drunk drivers have the highest surcharges, they are also most likely to fail to pay and thus end up unlicensed and uninsured. Despite claims to the contrary at the time it was passed, the surcharge has resulted in more uninsured drunks on Texas roads, rather than reducing their number.

In 2007, there were 6,024,000 crashes5 in the United States and 205,741,845 licensed drivers, giving us an overall accident rate of 2.93%. If we assume those 1.2 million surcharge debtors who lost their licenses (and therefore became ineligible to purchase insurance) continued to drive, and that they crash at the same rate as other drivers, then by reducing the number of insured drivers, drivers who lost their license through the DRP are involved in approximately 35,160 accidents per year. If DRP drivers were the responsible party in half of those accidents (a conservative estimate, as drivers with bad driving histories could be more likely to be at fault), then the DRP would be responsible for an additional 17,580 accidents per year in which the party at fault is not insured.

How much do those crashes cost Texans in uncompensated damages? It is possible to estimate. In 2000, a federal study analyzed costs from auto accidents, including medical costs, property damage, etc., attributing $230.6 billion in costs to 16.4 million auto accidents nationwide, at an average cost of $14,061 per accident. Adjusting for inflation, that’s $16,777 in 2007 dollars. Multiplying that figure by the number of estimated crashes caused involving surcharge owing drivers, we get an estimated $294,939,660 in costs from crashes in Texas caused by uninsured drivers.

Add in lost premium income to insurers, not to mention lost Department of Public Safety (DPS) fees from the more than 200,000 fewer driver license renewals each year (roughly $4.8 million annually), and nearly every facet of the Driver Responsibility Program is bleeding red ink – for the state and for average Texans – because of an array of unintended but now well-understood consequences from the program’s ill-conceived design. (Footnotes in original.)

Trauma hospital reps were out in force at the hearing, but only one of them unreservedly supported the DRP as is; most others said they recognized the program's funding source had problems that needed addressing, but were there to emphasize how important the additional funding had been to expanding the number of Texas trauma centers. I spoke to a couple of folk from Brackenridge and Seton Hospitals in Austin outside the hearing room who told me they didn't intend to oppose the current DPS rulemaking, which was encouraging.

I don't begrudge trauma hospitals their funding, but a revenue source should be found that doesn't create so many counterproductive, unintended consequences.

UPDATE: See coverage from the Texas Tribune.

Commission on Jail Standards: Toothless Watchdog?

Is the Texas Commission on Jail Standards too cozy with the county jails it regulates because it's "dominated by law enforcement interests"? That's the question posed in a story by Brandi Grissom today at the Texas Tribune. Commissioners affiliated with county jails must abstain when TCJS is evaluating their home facility comes up, notes Executive Director Adan Muñoz, but the bigger issue raised would be whether commissioners are willing to set general standards high enough out of fear their own county might not pass muster.

I don't know whether it has anything to do with the makeup of the Commission so much as the will of the Legislature, but of even greater concern to me, especially among large counties, there's an extent to which TCJS is pretty much all bark and no bite. Violations and variances to regs go on for years without resolution, and their prescriptions are too often taken as good advice instead of something mandatory. Their sanctions have no meaningful teeth short of outright closing a jail, which isn't realistic practically or politically outside of mostly small, rural jurisdictions. And the problems facing Texas' biggest county jails aren't going to be gummed to death.

Flawed science behind alcohol breath tests?

We tend to think of flawed forensics happening in high-profile rape and murder cases because that's largely who DNA exonerations have let out when bad forensics falsely convicted them. But the truth is many forensic methods and technologies in use today have not been vetted to a high standard of certainty, including forensics in more common cases like alcohol breath tests used at DWI stops.

Walter Reaves out of Waco points to this recent article by Dr. Michael P. Hlastala from the Journal of Forensic Sciences titled "Paradigm Shift for the Alcohol Breath Test" (pdf) that raises questions about DWI breath test technology. Writes Hlastala:

The breath test is an indirect test, but has been considered to be a good estimate of the BAC because of the assumption that an end-exhaled breath sample accurately reflects the alveolar (or deep lung) air alcohol concentration which is thought to be in equilibrium with the blood in the pulmonary circulation. In spite of the considerable effort that has gone into the studies attempting to validate the breath test, forensic scientists and toxicologists still have only a very basic understanding of the physiological aspects of the alcohol breath test (ABT) and associated limitations.

As Reaves summarizes the research:

The "old paradigm" assumes the amount of alcohol in the breath remains constant as it goes through the lungs. It turns out that is not accurate. In fact, the amount varies - sometimes significantly. The result is that the actual blood alcohol level may be over or under-represented.

The new paradigm recognizes that alcohol is deposited in the airway surfaces during both inspiration and expiration. It also recognizes that the alcohol that comes out in the breath test comes from airway surfaces rather than the alveolar region.

Indeed, found Dr. Hlastala:

All of the alcohol exhaled at the mouth comes from the airway surface via the bronchial circulation. Very little, if any, alcohol originates from the pulmonary circulation surrounding the alveoli. The fact that alcohol comes primarily from the airways is the reason why the BrAC depends on the breathing pattern. This contributes to the very large variation in the ABT readings obtained from actual subjects.

So air breath tests are based on a fundamental misunderstanding of the relation between alcohol in the breath and the bloodstream - a false belief that the exhaled air comes from the deep lungs. The researcher suggests potential policy implications for this updated understanding of breath patterns, concluding that:

Given the variation in the breath alcohol test, it might be appropriate to consider decreasing the importance of threshold levels for penalties. After further experimentation, it might be possible to define the variation due to breathing-related variables and to allow for a magnitude of error in the breath test. Penalties could be graded with a sliding scale that allows for error in the breath test and a continuously graded scale of penalties as the BrAC increases. In any case, this new recognition of the limitations of accuracy of the ABT warrants reconsideration of the breath test protocols used.

In other words, there's a margin of error on the test that's not recognized in the law but which makes using breath tests as the threshold for penalties problematic. Reaves concludes:

In Texas, limits are important for not only determining whether someone is guilty or not, but also for determining whether certain conditions are going to be imposed - such as a interlock device. The validity and accuracy of the breath test results is therefore critical.

This article does not break new ground - problems with breath testing have long been recognized. Those problems must be explored - especially in marginal cases. Where someone's future hinges on a machine, the least we can do is make sure the machine is accurate.

Lege hearing today focuses on Driver Responsibility Program, police proliferation

This morning the Texas House Public Safety Committee will meet to discuss a pair of Interim Charges that may interest Grits readers.

• Interim Charge #3: Monitor the Driver Responsibility Program and consider methods for overall improvement of the program.
• Interim Charge #4: Study the statutory definition, duties, and authority of a Texas peace officer.

The Legislature doesn't need to do anything for the Driver Responsibility rules recently proposed in the Texas Register to pass, but as mentioned last Friday, there may be a need for them next spring to reconcile the indigence program at DPS with the one that will launch in the courts in September 2011, preferably by having the Department of Public Safety waive charges for indigents as the Legislature directed courts to do beginning next year.

As for the duties and definitions of a peace officer, regular readers know I'd like to see Texas limit authority of constables to process serving and bailiffs duties: Mission creep at these agencies costs local taxpayers and reduces overall accountability. What's more, the ever-increasing list of different types of specialized police agencies deserves to be whittled down substantially - a theme discussed on this blog nearly since its inception - as does the overall number of agencies. There are 2,615 different entities currently employing peace officers licensed by the state.

That said, the Lege discusses this topic every session, everyone seems to agree there are too many agencies and different types of cops, then inevitably MORE specialized agencies are approved instead of taking any off the list. I'd be (pleasantly) surprised if next year is any different, but the discussion at the hearing should be interesting.

UPDATE: See initial coverage from the Dallas News and written testimony (pdf) from the Texas Criminal Justice Coalition.

A market solution for graffiti costs?

I noticed this editorial out of Montreal, Canada titled "Make graffiti 'artists' pay for their hobby," which makes the predictable and uninteresting argument that the justice system should require graff writers convicted of the offense to pay for cleaning up the damage they caused. That's a pointless stance because police solve far less than 1% of graff incidents so most crime victims wouldn't benefit. Montreal reportedly spends a whopping $6 million per year (Canadian) cleaning up wall writing.

But the headline made me think about the economics of the problem: Viewed in aggregate, graff on private property in economic jargon would be considered an "externality" -  a cost to a third party (not the seller or buyer of spray paint) that is not included in the price of the product. An (admittedly imperfect) analogy may be a manufacturer pumping out air pollution or even your own personal vehicle emitting greenhouse gases. Without external government intervention by regulators or courts, the costs from pollution aren't included in the price of the products. In effect, products are subsidized by not including costs to people who are harmed but not party to the transaction.

What would it look like if graff writers truly paid for their hobby? How about a tax on spray paint with revenues dedicated to paying for graffiti cleanup? Just raise the price until it pays for the costs of the externality. Some state and local governments have tried banning sale of spray paint to minors or limiting how much individuals can purchase, but in theory you could accomplish the task more efficiently by increasing the price point until it covers the externalities. And if it means a can of spray paint will cost $50-$75, who besides Krylon and the graff writers would really care?

Every "command and control" mechanism imaginable has been tried and failed to limit graff writing on private property. Perhaps simple market economics might succeed in reducing graffiti where bans and criminal prosecution have miserably failed?

Incarceration rates headed "straight up again" if Texas cuts diversion programming

At the Dallas News, Robert Garrett reports on a concern I've expressed here on Grits that the Texas Department of Criminal Justice plans to focus budget cuts on treatment and diversion programs while keeping the prison budget whole ("Addiction program for offenders too valuable to lose, proponents say," Aug. 9). Wrote Garrett:

Many criminologists and others in the field say that groundbreaking work on drug and alcohol counseling and community supervision has proved so effective that it has prevented another Texas prison-building boom. But they fear that could change if lawmakers cut diversion programs as they tackle a projected $18 billion budget shortfall.

"We've saved money, kept the public safe, and we're not getting the state in such a situation where they're having to just open the doors of the prison and start pushing people out," said Teresa May-Williams, assistant chief of probation in Dallas County, which has been a leader of Texas' big push to treat nonviolent offenders' addictions.

But the state's incarceration rate would be "going straight up again – and it would be fast" if cuts were made, she said.

The diversion programs' uncertain future demonstrates a potentially recurring problem: Cuts that lawmakers make now to prevention efforts – whether aimed at disease, child abuse, high school dropouts or ex-cons' relapses into drug abuse – could cause long-term woes that cost more to address. The cuts also could cancel lively experiments praised by criminal justice experts around the country.

Texas' offender population has decreased slightly since 2007, when the Legislature began investing more money in treatment, diversion and lower caseloads for local probation officers. State analysts project it to stay essentially flat at nearly 155,000 adults through 2015.

"It is reasonable to conclude those actions are largely responsible for the decline," said Michelle Lyons, spokeswoman for the state criminal justice department.

Lawmakers and Gov. Rick Perry have ordered all state agencies to identify 10 percent in spending cuts over the next two years, preparations for tackling the budget gap next year. While the department has a few more weeks to fine-tune its cuts list and isn't tipping its hand, backers of the treatment and diversion initiatives fear the worst.

I couldn't agree more that slashing diversion funding would be penny wise and pound foolish. The Legislative Budget Board in June released projections that Texas' prison population had leveled off for the time being, but would increase again if diversion programming was cut. Closing prisons while doubling down on community supervision and probation funding is the only realistic way for the agency to cut 10% without harming public safety. If the state just slashes treatment and keeps all its prison units open despite declining inmate populations, there's little doubt they'll fill up and overflow again with breathtaking rapidity.

Mentally ill languish in Bexar jail awaiting assessment, competency restoration

Several notable stories out of San Antonio this week related to mental illness in county jails deserve Grits readers attention:

• Bexar breaks law on menally ill inmates, Aug. 1
• County cannot decide not to comply with the law, Aug. 5
• Jail is not answer for mentally ill, Aug. 6
• Nelson Wolff: Political will in Austin needed to help mentally ill, Aug. 7
• Texas is 49th in mental health funding, Aug. 7

Last Sunday's story identified a problem that is likely also an issue at most other Texas county jails. It opened:

Bexar County is breaking a state law requiring the swift examination of every mentally ill prisoner in jail, leaving an untold number of inmates languishing without proper psychiatric care.

Local courts are supposed to order psychiatric exams and use the results to route many of the mentally ill offenders toward treatment and away from the jail, where only one part-time and two full-time psychiatrists are employed to treat about 900 inmates a day suffering from some form of mental illness.

The jail is screening inmates when they are booked and providing a daily list of the mentally ill to magistrates.

But the courts at that point drop the ball, saying they are overwhelmed and lack the resources to order the examinations or distribute reports to attorneys. And mental health providers inside the jail say they lack the staff to adequately examine every prisoner who might be mentally ill.

As a result, the jail continues to warehouse mentally ill offenders accused of minor crimes who would be better served in psychiatric hospitals. The courts’ failure to follow the law contributes to crowding at the jail, where an estimated 21 percent of the 4,500 prisoners have a mental illness.

Ironically, Bexar has been widely recognized for its jail diversion program for the mentally ill, where police take some offenders to a "Crisis Care Center" instead of jail. Judge Wolff points out that "Since its inception in 2002, the Jail Diversion Program has prevented 5,600 people from even seeing the inside of a jail cell by law enforcement instead bringing those individuals to the Crisis Care Center." But for those actually taken to the jail, apparently the systems remain an under-resourced mess and magistrates have openly refused to comply with a law requiring mental health evaluations on the front-end of the process.

The latest story focuses particularly on the issue of competency restoration and the declining number of forensic beds available at state hospitals, a subject which this blog has been tracking for several years.

Forensic beds in hospitals are used to treat mentally ill inmates who are deemed not competent because of their illness to proceed to trial.

In Texas, the current wait for a forensic bed is three to six months, and the waiting list numbers about 350 for nonviolent inmates, state officials said.

“I've got 103 in jail right now waiting to go to the state hospital,” said Ron Stretcher, criminal justice director of Dallas County. “About a year ago they started squeezing down on the number of beds, but the state Legislature controls that. The state is pushing costs down to the county.” ...

Associate Probate Judge Oscar Kazen, who presides over hearings to commit those in mental health crises, said further slashing of state hospital beds would only worsen the inequity in how the mentally ill are punished.

“People just disappear into that (competency restoration) hole and sometimes don't come back for months and months and months,” Kazen said.

The competency restoration issue is big sleeper issue that's reaching critical mass, headed quickly once again toward crisis stage. The state began pilot programs to do competency restoration locally in four counties, including Bexar, but their outpatient program only has 50 slots. The story mistakenly quotes a local official saying the Bexar program was unique, but it's one of four legislatively authorized pilots. In general, those pilots have worked well but not operated at a volume sufficient to take pressure off state hospitals. Cuts to state hospital's forensic beds constitute a direct shift of costs to local jails, which are generally ill-equipped for such tasks.

FWIW, this is some of the best original reporting on criminal justice issues out of San Antonio since their paper began sharing content with the Houston Chronicle. And I'd bet the farm that similar stories could be told throughout the state wherever reporters poke their noses into this obscure but critical aspect of the justice system.

Prison ministry by and for youth

Here's a nice article from the Fort Worth Star-Telegram about high school athletes at Southlake-Carroll taking time for a weekly softball game with TYC youth from McFadden Ranch. The story opens:

Take a 20-minute ride from the well-manicured community of Southlake through the back roads of rural Roanoke and you might, if you can find it, stumble upon McFadden Ranch.

The 48-bed facility set in the middle of a handful of acres serves as the centerpiece for this community-based residential program that, through the Texas Youth Commission, provides care and treatment to juvenile offenders.

The drive is one several members of the Southlake Carroll football team have become very familiar with over the last few months... for all the right reasons.

Nearly every week this summer around 15 Dragons, mostly offensive linemen, show up at 6 p.m. to engage in a friendly game of softball with the TYC kids. The groups share gloves, bats, watermelon and testimonial for about two hours each time.

This all started by Carroll senior offensive lineman Nathan Butler. His father, Steve Butler hosts a bible study for football players every Wednesday during the school year. Once summer commenced, Nathan came up with the idea to play softball at McFadden Ranch.

"[Southlake Carroll] Coach [Hal] Wasson always tells us to go out and reach out," Nathan Butler said. "My dad's been doing prison ministries for as long as I can remember. So I am just following in his footsteps and doing something to help the offensive line and defensive line come together."

Warning Judge Keller

The State Commission on Judicial Conduct yesterday issued its response (pdf) to Texas Court of Criminal Appeals Presiding Judge Sharon Keller's request for a writ of mandamus from the Supreme Court of Texas, declaring Keller's request outside the bounds of the SCOT's jurisdiction. See Keller's petition (pdf) and earlier Grits coverage. They rebut Keller's claims to argue that:

• The Commission's Order of Public Warning Was Authorized by the Constitution and this Court's Rules Interpreting the Constitution.

• Judge Keller's Complaints About Individual Findigs of Fact Are Not Cognizable in Mandamus.

• Judge Keller's Argument Regarding the Commission's Vote Consists Entirely of Impermissible Speculation.

• No Commissioner Was Disqualified from Service.

• The Commission's Order Is Not "Void" and Judge Keller Has an Adequate Remedy at Law Through a Trial De Novo.

Interestingly, Executive Director Seanna Willing has changed her stance. The agency's position appears to be fluid, perhaps because of disagreements between commissioners and the executive director.Willing had earlier argued that the Commission acted outside its authority to "warn" Keller instead of issuing a formal "censure" that would have barred her from acting as a visiting judge after she leaves the bench. Now she argues - with Examiner Mike McKetta who has consistently maintained the warning was okay - that the Commission could legally give the lesser sanction, while ironically Judge Keller argues that the Commission had no authority to issue a "warning" as punishment. Willing has flip flopped and Keller has adopted her former stance. Weird.

I've got to admit, I don't care much who is right on the details of the obscure debate over the Commission's power to "warn" judges after a formal hearing, though it's telling that judges are punished so rarely they've never had to figure it out. At this point I'm just watching for the entertainment value, which to this writer, anyway, has been substantial.

Amnesty, Indigence rules for Driver Responsibility surcharge finally published

New rules for Amnesty, Indigence and Incentive program were issued by the Department of Public Safety in today's Texas Register for the Driver Responsibility Program. I'll have much more on this next week heading toward the upcoming House Public Safety Committee meeting on the subject.

The Amnesty program looks about as good as I could have hoped for and I'm really proud of everybody at DPS (and their bosses on the Public Safety Commission) for listening carefully to public criticism and thoughtfully responding to it. This could potentially help out a lot of desperate folks. The Indigence program is also a big improvement, though there's a good chance the truly indigent still won't be able to afford $250. Basically it's the same reduction offered to those under the more general Amnesty program available to everybody.

There is, however, an easily fixed glitch spotted by the talented and indefatigable Amanda Marzullo at the Texas Fair Defense Project: Because the proposed rules fail to waive surcharges for indigent drivers - as courts will be required to do beginning in September 2011 under Rep. Sylvester Turner's amendment -  there's a risk going forward that drivers might choose to seek relief through the courts instead of DPS' administrative program. That would be an unnecessary hassle for the courts and easily rectified by DPS waiving surcharges for indigents to match the relief that courts will be giving. Going forward, if DPS doesn't waive surcharges for indigent drivers, the Legislature will need to somehow reconcile the parallel programs in the courts and at the agency to avoid overburdening county-court judges.

It's disappointing that the incentive program won't be implemented right away, but when the economy bounces back, at least it will be on the books and perhaps the agency can implement it later. For my part I think estimates of large financial losses due to an incentive program - where drivers could pay a smaller lump sum up front instead of spread a larger amount over three years - are likely overstated. After all, so many are able to make their first payment but don't complete the final two in the out years. And since we're going to do something for drivers who defaulted, it's a shame not to also implement the program that benefits folks who played by the rules. But that's who the revenue comes from so DPS apparently decided they couldn't do so and keep their changes revenue neutral.

Perhaps next Spring, if there's not enough support to abolish the DRP entirely, the Lege should simply require DPS to implement the Incentive program, since it will already be on the books in the Administrative Code and vetted by stakeholders. It'd be a bit like a bowler picking up a spare. Who knows? Sure, I'd rather see the DRP abolished and will certainly continue to promote that option. But this program is in flux and there's still a lot of opportunity over the next 12 months to make it significantly more consumer friendly, at the very least, whether or not it's possible to get rid of it entirely during a major budget crunch.

Keep 'em waiting

Paul Kennedy has a couple of posts up alerting me to the City of Houston's new policy of requiring citizens to wait needlessly for hours in municipal court while instructing officers to "ignore subpoenas for morning appearances" to save money. Reported the Houston Chronicle ("HPD's new municipal court policy wins few fans," July 28):

In an effort to slash $4 million in Houston police overtime, officers have been ordered to ignore subpoenas for morning appearances in municipal court, a policy change that has infuriated citizens, riled defense attorneys and angered police union officials.

Houston police have been ordered by Police Chief Charles McClelland to appear in court at 1 p.m., even if they have been subpoenaed to a trial at 8 a.m. or 10:30 a.m. by the seven municipal courts that hear jury trials. Citizens who show up for their trials are not allowed to leave the courtroom — except for restroom breaks or to put money in parking meters — resulting in a wait of up to five hours before their cases begin. ...

"The city wants to save on (overtime) money they pay officers, and they want to force citizens into pleading guilty by having them sit on these hard benches," said Houston attorney Paul Kubosh.

Kennedy reminds the mayor and city attorney in an open "Memo" that:

The motorist also has a right to confront the witnesses against him - even if the City of Houston is going to have to shell out some overtime money for the officers.

The motorist is issued a notice informing him of where and when he is to appear for his trial. The officer who issued the citation is served with a summons to appear at the same time in the same place. If the motorist is not sitting in the courtroom when his name is called, the judge will have a warrant issued for his arrest. If the officer isn't present, the case is dismissed. But now y'all have decided that the law doesn't apply to the city and that officers don't have to be in court for the morning docket call.

It's the government who's attempting to take money out of the motorist's pocket. It's the motorist's money. It's the motorist's time. If the government wants to infringe on someone's liberty then it's the government who needs to deal with these messy inconveniences of our criminal justice system, not the motorist. Yet it's the government who decides to make innocent people sit in a courtroom for hours waiting for their accusers to show up in court. The state may have the burden of proof, but I guess the citizenry have the burden of exercising their rights.

How infuriating that would be for those involved! If police can ignore the summons, would it be okay if drivers ignored the morning docket call and everyone showed up after lunch? Perhaps they could tell the judge the Mayor said "Trials don't start until 1 in the afternoon." And since when did cities begin looking to find budget savings by ignoring routine court orders?

Medical pot in Texas?

Julian Aguilar at the Texas Tribune reports something I'd heard rumored: That there will be a significant push to allow medical marijuana in Texas over the next couple of sessions. Supporters:

cite a poll that found a majority of Texans support legalizing marijuana for medicinal purposes. A University of Texas/Texas Tribune poll conducted in May showed a similar finding, with the majority of Texans favoring one or more methods of legalization: 42 percent of Texans were open to the idea of legalizing marijuana, 28 percent say possession of small amounts should be legal, and 14 percent said any amount should be legal. Twenty-seven percent said it should be legal for medical purposes only, and another 27 percent said it should be illegal under any circumstances.

“If [those numbers] hold even close, then this isn’t really a political liability with the voting public,” Schimberg says. “It’s just a mental block with the representatives and the senators.”

Ironically, in the past efforts to wholesale reduce penalties for low-level marijuana possession have gotten farther in the legislative process than medical marijuana bills. In 2005 a bill to reduce marijuana possession of less than two ounces to a ticket only offense passed unanimously out of the House Criminal Jurisprudence Committee without any testimony in opposition; even Debbie Riddle, one of the most conservative members of the Legislature, voted to reduce pot penalties. Unfortunately, then-Speaker Tom Craddick and the Calendars Committee would not allow the legislation to get a House floor vote (where we believed at the time we could count a majority), ostensibly to "protect" members from a controversial vote. (Now that we have a different Speaker, maybe it would be worth taking another crack at that bill.)

By contrast, medical marijuana couldn't even get a hearing in committee the last couple of sessions. I think that's because counties have major practical and financial interests in reducing pot penalties from a B to C misdemeanor. They would get fine revenue instead of spending money on incarceration, and wouldn't have to pay indigent defense costs for defendants who couldn't afford a lawyer, plus it would reduce overcrowding pressure on county jails - a win-win all around from counties' perspective. By contrast, the loose, fractious coalition of doctors, patients and pot activists behind medical marijuana initiatives has had trouble getting its broad but shallow support at the Legislature to gel, and there's not nearly as compelling a financial argument for medical pot from government's perspective compared to reducing pot penalties overall.

I wish medical marijuana supporters luck and think it'd be great if they could get the job done. I suspect, though, with the coming budget crunch, it might be more difficult to push this issue up the Legislature's priority list than to win a full-blown reduction in marijuana penalties overall.

Leadership needed to reduce Harris County jail overcrowding

Both Dallas and Harris Counties are up on today's Texas Commission on Jail Standards agenda (pdf), and I'd be headed up there to listen in if paying work didn't obligate me to focus my attention elsewhere. In the meantime, Brandi Grissom has a story at the Texas Tribune on overcrowding at the Harris County Jail based on a letter (pdf) from legislators to TCJS' Adan Munoz and the executive director's response (pdf). Sheriff Adrian Garcia replied (pdf) to both, and Grissom runs through the highlights of the exchange. I was particularly interested in Sheriff Garcia's brief mention that he's considering allowing his deputies to issue a summons/citation for low-level Class B misdemeanors, as authorized by the Legislature in 2007 to help reduce overcrowding. Garcia wrote that:

Cite-and-release is an option I continue to consider. However, for such a policy to significantly lower jail population, it would also have to be adopted by the Houston Police Department (which provides 60% of our jail bookings) and the many other agencies that bring inmates to the jail. If officers on patrol had the authority to collect DNA and/or fingerprints at the scene of such a case before issuing a citation, this would go a long way toward raising the public's comfort level with cite-and-release.

As I mentioned in the comments at the Tribune, I have no idea what Sheriff Garcia means in his letter about the "public" accepting the summons idea. There has been nobody publicly opposing the idea except Garcia himself! Not to mention, he's making the process a lot more difficult than it needs to be if he's waiting for deputies to take fingerprints and DNA swabs in the field before implementing the program. Other jurisdictions have developed processes for handling those details and Garcia could mimic their systems if he tried.

OTOH, I do agree that the Sheriff's department implementing cite-and-summons alone wouldn't make as big a difference as Houston PD doing so. But leadership matters and there's precedent to believe that if the Sheriff takes such a step, other law enforcement agencies may follow his lead. In Travis County, the Sheriff implemented a B-misdemeanor summons policy first and then the municipal police in Austin began issuing Class B citations after the Sheriff demonstrated it could work. Other jurisdictions across the state have made the switch, often with the sheriff taking the lead because only the sheriff has direct responsibility for an overcrowded jail.

For that matter, Sheriff Garcia is a former city councilman and has ample connections within city government. When he wanted to expand his jail he had no qualms about going to city government and asking them to partner on a new facility. Why not go to Mayor Annise Parker and say, "We need you to join us in implementing summons for B misdemeanors to solve our jail overcrowding problems"? Perhaps the Sheriff doesn't think that's his role, or perhaps that's supposed to happen through the county's fledgling Criminal Justice Coordinating Council, but somebody, somewhere, needs to demonstrate some leadership and focus more on results than excuse making.

It's not all Garcia's fault; for the most part all of the main drivers of jail overcrowding in Houston have been going on for many years and most of them are beyond his control. I've just heard too many excuses for inaction coupled with demands for more jail building, and at this particular moment in the county's history that's not good enough anymore.

UPDATE: Grissom has more from the hearing.

Related Grits posts:

• Lower utilization by 'frequent flyers' to reduce pressure on jail
• Proposed mental health wing at Harris jail raises question of treatment priorities
• Sheriffs more likely than PDs to welcome new arrest discretion
• Jefferson County works out kinks with new police cite and summons authority
• Nuts and bolts of citations for low-level misdemeanors explained by Travis Sheriff's Office

Shift steroid testing dollars from students to cops

Kuff criticizes the high-school athletics steroid testing that this blog has derided since its inception, noting that "About 50,000 tests since February 2008 have found only about 20 confirmed cases of steroid use." Chuck opines that the program at one point cost $3 million per year before it was scaled back in reaction to reports of its ineffectiveness. "It’s now down to $750K," he says, "Which ought to be the first thing erased from the budget next biennium, since clearly we’re spending all that money on a non-problem."

I certainly understand that sentiment. I'd suggest, though, that funds for steroid testing not be eliminated entirely but instead redirected to an area where we know there's a much more significant problem than in high school sports: Steroid use among law enforcement. After a high-profile steroid dealer in Plano who was accused of selling illicit drugs to cops and professional athletes died of gunshot wounds along with his bodybuilder girlfriend, Plano authorities chose to aggressively pursue his athlete clients but didn't investigate who were his police officer customers. Only one of the five agencies at which he allegedly sold drugs implemented steroid testing in response. Too often, police agencies tolerate steroid use among their own even while investigating others for the same offense.

There are so many high school athletes that spending $750K can't remotely check everybody, and even when they do test, only 2 in 10,000 athletes come up positive. OTOH, that much money aimed at steroid testing a much smaller number of active-duty law enforcement officers would allow for much broader coverage among a group where there's a lot more evidence that steroid use is a widespread, significant problem. Right now, in most cases investigators - federal, state and local - fail to take the most obvious first steps toward investigating steroid use among police, even when they have evidence that would allow such an inquiry. (If you're a celebrity sports star, though, they'll spare no expense to hang you out to dry.)

Steroid testing on student athletes turned out to be well-intentioned but unnecessary. Perhaps if police were tested, we'd similarly discover that a de minimis number were using steroids, at which point I'd argue, just like with athletes, that it's simply not necessary if it's catching so few. OTOH, there's good reason to suspect steroid use among police is much more widespread than among high school student athletes, and if the state is going to invest in steroid testing, it makes a lot more sense to put resources there.

Constables' roles debated in context of budget crisis

County-level budget crises are raising long-simmering questions about the proper role of constables and whether they should act as mini-Sheriff's departments or stick to serving civil papers and acting as court bailiffs. In Van Zandt County in East Texas:

Precinct 4 Constable Pat Jordan spoke earlier this week about the history of the office of constable in Texas.

"The first form of law enforcement in Texas, as it was being settled, was the constable," Jordan said.

"The state constitution gives us the rights and duties of any other peace officer," he continued. "Really, the only difference between a constable and the county sheriff is that a constable is given the duties of bailiffing the precinct (justice of the peace) court and serving civil process papers, and the sheriff is the keeper of the jail."

Van Zandt County Sheriff Pat Burnett sees things differently, and it underscores a longstanding tension between he and Jordan, a former Van Zandt County Sheriff.

Returning from a statewide sheriff’s convention in Fort Worth on Tuesday, Burnett said the issue of whether a constable should go beyond court bailiff and civil paper serving duties is not unique to Van Zandt County.

"It’s a statewide problem.," he said. "A constable’s constitutional duties are acting as bailiff for the justice of the peace in their precinct, and to serve civil process papers.

"When you have a constable or one of his reserves getting out of those realms and wanting to be a sheriff’s office, that is when things start getting off track," Burnett added.

It is a sentiment that was echoed Tuesday by comments from Precinct 2 Commissioner Virgil Melton Jr., one of three members of the commissioners’ court who voted to reduce the reserve deputy constable program to one position in each of the four precincts.

With Jordan sitting adjacent to him at the table, Melton Jr. criticized the constable for "running a mini-sheriff’s office" in Precinct 4 and interfering with investigations being handled by Sheriff Burnett’s staff.

Similarly, in Corsicana Navarro County officials rejected a request to increase constable pay so that constables could perform policing duties in addition to bailiff work and process serving:

[Constable David] Foreman appeared before county commissioners Tuesday requesting a salary of $35,000 on top of expenses, even though his salary is budgeted at $12,651. He made a similar request of commissioners in the 2009 budget discussions, as did two of the other three county constables, including Precinct 4’s Tommy Grant and Precinct 1’s Mike Davis. Brad Butler, Precinct 3 constable, did not request a salary increase.

Foreman argued that he carries out more than his standard duties and should be paid in the same way as other elected county officials.

“I have never spent my budget in wages because it is just sitting there,” said Foreman. “You are stewards of the tax payers money and I am as well. I don’t agree that I am part time. I spend a lot of time patrolling and answering calls.”

County budget figures show that there could now be a budget deficit approaching the $1.5 million mark, and [County Judge H.M.] Davenport defended fending off further expenses.

“The statutes say you should serve the papers and bailiff duties,” replied Davenport. “It doesn’t say anything about patrols or anything else. Honestly, I don’t think that it is fair to tax payers who would pay the money for work only carried out every now and again. With this economy it is best to just hang on to what we have got.”

This blog has long held that it's extremely problematic for constables to take on everyday policing duties, in both big counties and small. So I was pleased to see, for example, that in Dallas this week the commissioners court supported:

creating more stringent hiring requirements for deputy constables, a response to corruption allegations surrounding certain constable offices.

Applicants currently don't have to take a written test, physical assessment or polygraph test – all of which are required to be hired as a sheriff's deputy. Commissioners said they favor adding those tests for constable deputies.

They had asked the county human resources department to study the job qualifications and hiring process of deputy constables earlier this year after a Dallas Morning News investigation in February. ...

A recent state audit of the personnel files of several Dallas County deputy constables in Precinct 5 revealed that the files didn't contain required documentation, such as criminal background checks and confirmation of previous employment.

Indeed, Dallas is also likely to scale back constables' office budgets in the face of declining tax revenues:

Also Tuesday, during a budget discussion, county budget director Ryan Brown said that eliminating 30 of the 40 constable warrant deputy positions would save about $3 million. Each constable precinct has eight warrant deputies.

Brown is trying to close a $23 million budget shortfall. The constable traffic units are also among the items facing elimination.

Perhaps the budget crisis will succeed in scaling back constables' roles where good judgment and common sense could not prevail. At the end of the day, though, what's IMO needed is a new law or constitutional amendment expressly limiting constables to process serving and bailiff's duties and flat-out removing them from the list of officers exercising a full range of police powers.

DPS trooper pay still lags big Texas cities

Brandi Grissom at the Texas Tribune ("State of Pay," Aug. 3) comparing Department of Public Safety trooper salaries to the larger Texas cities, citing low DPS pay as contributing the agency's more than 10% vacancy rates among troopers. Here's a chart from the Tribune detailing max pay at various agencies (excluding overtime):

Read the full story.

See related Grits coverage:

• Reduced training for DPS troopers
• State troopers would need 52% pay raise to match Austin police
• DPS spending millions on TDEX database while driver license lines lengthen 
• Next DPS leader faces trooper shortages, low morale

Notable innocence coverage

Three notable innocence-related stories today from the Houston Chronicle:

• Odds still against clearing inmates
• Protocol for the wrongly convicted
• Waking up after a 27-year nightmare

In the first story, Jeff Blackburn from the Innocence Project of Texas says he thinks there are "thousands" of innocent people incarcerated in Texas prisons. Though that may sound high, it jibes with the various estimates from different sources on the number of actually innocent people in Texas prisons, which range from 1,200 to 5,000.

SCOTUS, felons and the Voting Rights Act

Texas has one of the more progressive stances among states regarding disenfranchisement of felons at the ballot box: Felons may vote again once their sentence is complete and they're "off paper," including any stint on probation or parole. But the incomparable (and sorely missed as NY Times SCOTUS reporter) Linda Greenhouse has a blog post titled "Voting Behind Bars" that raises the possibility that SCOTUS may soon rule on whether incarcerated felons may vote, and as I look at this particular crop of SCOTUS justices, I scratch my head and wonder if there's a chance they might do so. Greenhouse writes:

It has been nearly three months since the court “invited” — that is to say, ordered — Solicitor General Elena Kagan to “express the views of the United States” on whether laws that take away the right to vote from people in prison or on parole can be challenged under the Voting Rights Act as racially discriminatory.

The order came in a case from Massachusetts, Simmons v. Galvin, an appeal by prison inmates challenging a 10-year-old state constitutional amendment that stripped them of the right to vote while incarcerated. They seek Supreme Court review of a ruling, issued a year ago by the federal appeals court in Boston, that Congress never intended the Voting Rights Act to apply in prison. The federal government was not involved in the case. Now the administration — presumably under the direction of whomever President Obama names to succeed Ms. Kagan as solicitor general — has to come up with a position.

It would throw a major political wild card into the electoral political mix if it turns out disproportionate sentencing by race creates de facto violations of the Voting Rights Act. Citing the Sentencing Project, Greenhouse says felony:

convictions have deprived 20 percent of African-Americans in Virginia of the right to vote, compared with a 6.8 percent disenfranchisement rate for Virginia residents as a whole. In Texas, a similar ratio applies: 9.3 percent for blacks compared with 3.3 percent for Texans as a whole. In New York, 80 percent of those who have lost the right to vote are black or Hispanic. Nationally, an estimated one in seven black men has lost the right to vote.

I'm not a lawyer, but this piques my interest mainly because it piqued the Court's; I don't think they'd ask for arguments unless a chance existed that they'd do something, if only to settle disagreements among the circuits. And if a majority decides mass incarceration is discriminatory, then what? Probably nothing, as milquetoast as the Court has been on related topics in recent decades. But they're all just sitting up there with life tenure, and once they take the case, you never know.

How many extra voters would be added to the rolls in Texas if incarcerated people were allowed to vote? Basically you increase the eligible voting population by 3.3%. At the end of FY 2009 there were 155,076 inmates in Texas prisons, state jails and SAFP facilities, according to the TDCJ annual statistical report (pdf). Another 249,082 were on felony probation, and 105,820 were supervised on parole. On July 1, according to the Commission on Jail Standards, another 71,382 were locked up in Texas counties jails. That brings the total number of potential Texas voters who are incarcerated or "on paper" at any given time to 581,360, mas o menos.

Importantly, though, for the ones in prison or jail, voter turnout could be quite high if it were allowed because the voters are literally a captive audience, easy for campaigns to target, and likely to fill out a ballot if it's given to them. OTOH, I suspect voter turnout might be lower than average among those on probation or parole. You might add 300,00 voters or so overall, skewing Democratic but perhaps less than a lot of folks think - Red Texas sends a lot of its own to prison.

How would such a change impact Texas elections? McCain beat Obama in Texas by 950,695 votes in 2008, according to Wikipedia, with the major candidates getting 4.5 million and 3.5 million votes respectively, so in the biggest statewide races it still wouldn't be a game changer. But there would be big impacts in certain, individual legislative districts - either in rural areas, where prisons are housed, or in inner cities if prison voters were registered in their county of conviction. Presently prisoners are counted in the census in the county in which they're incarcerated for purposes of defining legislative districts, but if they actually got to vote that would mean places like Huntsville and Palestine would all of a sudden be electing prisoner advocates to the state Legislature, and even local city and county campaigns would be obliged to craft and deliver messages to woo eligible prison voters, whereas today they can get away with pitching only tuff on crime messages. That part would definitely change how campaigns are run in those locales. Or, if such a major change occurred, the Lege could change the law to allow prisoners to vote in their home counties. Quien sabe?

Perhaps the idea is fanciful, but it's certainly provocative, and Greenhouse's reportage makes it clear that those who would apply the Voting Rights Act to mass incarceration are engaging in a plain reading of the statute. Meanwhile, declaring it doesn't apply requires judges to take an "activist" stance, claiming it wasn't "Congressional intent" for the statute to apply to prisoners. It's hard to buy that argument, though, since the rise of mass incarceration began after passage of the Voting Rights Act; it wouldn't have been an issue at the time because so few people, relatively speaking, were incarcerated. Today, though, when one in 22 adult Texans are under supervision by the criminal justice system, arguably the discriminatory results do affect many elections at the margins, which is where close races are won or lost.

Texas' largest counties sending fewer to TYC

The number of juveniles sent to youth prisons from Texas' largest counties dramatically declined after 2007 - when the Legislature implemented reforms at the Texas Youth Commission in the wake of a sex abuse scandal - demonstrating the remarkable extent to which state and local decisionmaking drives incarceration policy as much or more than crime rates. This chart (compiled from data published here) depicts those declines, which by far were steepest in Houston and Austin:


Bottom line, if Texas decides to incarcerate fewer people, the experiment with juvenile prisons shows the state can do so. Those declines mainly represent local judges and prosecutors deciding to utilize prisons less and focusing more on probation, with the net result of roughly halving TYC's inmate population. IMO not only could the state do the same thing with adult prisons, the coming budget crisis may force us to do so.

Dallas News backs closing prisons to save money

A Dallas News editorial yesterday looking forward at specific ways to cut in next year's Texas state budget offered these suggestions for saving money in the justice system:

PUBLIC SAFETY AND CRIMINAL JUSTICE: $650.6 million
Alcohol and Beverage Commission $9 million 10%
Overseeing prisons and felons $500 million 10%
Repair and construction of prisons $10 million 50%
Parole system $10 million 3%
Central administration $7 million 6%
Commission on Fire Protection $600,000 9%
Juvenile Probation Commission $30 million 10%
Department of Public Safety:
Central administration and support $50 million 26%
Texas Youth Commission $40 million 10% 

Unstated but implied, to reduce costs for "Overseeing prisons and felons" by $500 million would require closing multiple prison units and reducing the total number of people the state incarcerates and employs at its 112 units across the state. Only public education would take a bigger hit, if DMN editorialists got to make the call. (They advise against the cuts to mental health care services recommended recently.) 

At odds with that recommendation, though, are simultaneous recommended cuts to the parole system. A mantra I'll likely be repeating through next session will be that incarceration costs can go down safely if the state maintains or increases incentive-based investments in community supervision. The big fights will be over whether to close units, and then, which ones? That debate's not happening yet in official forums in Austin, at least not publicly, but it's probably just around the bend. 

See related Grits posts:

• LBB: Prison population flat for years to come unless Texas cuts diversion programming
• Youth prison closures offer policy, budget model for TDCJ cuts
• 'Unthinkable' prison closures now on table at Texas Lege
• State won't exempt public safety agencies in next round of budget cuts
• Criminal justice policy: An unlikely bipartisan consensus
• $18 billion budget shortfall mean prison closures must be on table
• Will public support cuts to prisons during budget crunch?
• Former House Corrections Chairman: Don't make same mistake as in 2003, close older, most expensive prison units to save money
• TDCJ needs 'Plan B' to rescue successful community corrections investments
• Which prison units should Texas close? Private contracts, security concerns may factor in
• The shortest distance to cutting 5% at TDCJ: Reduce drug penalties
• An 'unrepentant, hard-right conservative' was 'forced to agree' with prison diversion 'based on the facts'
• Correa: Preserve diversion funding, cut prisons to reduce TDCJ's budget
• Texas' criminal justice challenge in 2010: Find solutions to coming budget crunch
• Might 2011 budget crunch bring TX prison closures?
• As 2011 budget crisis looms, should most expensive prison units be closed?
• Data on TDCJ unit age and cost
• As 2011 budget crisis looms, should most expensive prison units be closed?
• States slashing spending costs, closing units
• Some states actually shutting down prison units
• Emptying prisons makes Wired magazine's 'Smart List'

Just as easy as ever to acquire fake passports

The quest to create a passport that can't be forged or faked - mirrored at the state level for driver licenses via the Real ID Act - has turned out to be a quixotic and expensive one.

After 9/11, the US revamped passports and passed the Real ID Act attempting to require states (many have balked) to enhance supposed security measures to prevent fraudulently obtaining identification. And a report issued last week by the Government Accountability Office informs us that after billions spent on security "upgrades," the feds still fail to detect most actually fraudulent attempts to obtain a passport. According to the report summary:

GAO was asked to perform additional proactive testing of State's passport issuance process to determine if it continues to be vulnerable to fraud. To do this work, GAO applied for seven U.S. passports using counterfeit or fraudulently obtained documents, such as driver's licenses and birth certificates, to simulate scenarios based on identity theft. GAO created documents for seven fictitious or deceased individuals using off-the-shelf, commercially available hardware, software, and materials. Undercover investigators applied for passports at six U.S. Postal Service locations and one State-run passport office.

State's passport issuance process continues to be vulnerable to fraud, as the agency issued five of the seven passports GAO attempted to fraudulently obtain. While there were multiple indicators of fraud and identity theft in each application, State identified only two as fraudulent during its adjudication process and mailed five genuine U.S. passports to undercover GAO mailboxes. ... GAO's tests show that State does not consistently use data verification and counterfeit detection techniques in its passport issuance process. Of the five passports it issued, State did not recognize discrepancies and suspicious indicators within each application. 

I find that extraordinary. Next month will be nine years out from 9/11 and if these examples are typical, it's just as easy to get a fraudulent passport today as it was years ago before supposed reforms. There's been so much focus on improving passport security - like installing RFIDS in passports that hackers almost immediately copied - that the notion that it's still this easy to get a fake would be laughable if from a taxpayers' perspective it weren't so angering.

Several takeaways here: 1) It's a lot harder to discover intentional fraud than grandstanding politicians seem to grasp, 2) expensive tech can't substitute for competent human evaluation, and 3) even "gold standard" identity documents mainly regulate the law abiding, while dishonesty, corruption and incompetence will always exist and be subject to manipulation in any security apparatus, no matter how much money and resources you throw at it.

See the full report (pdf).

Female inmates training dogs in Brownwood

I've seen reports of similar programs in adult settings and always thought it was a good idea, so I'm pleased to see notice on the Texas Youth Commission website that the Ron Jackson unit in Brownwood, which houses female juvenile inmates, is experimenting with youth training dogs as part of their treatment curriculum:

PAWS is a unique program that uses the natural relationship that comes from the bond between humans and animals living together and being responsible for each other.

The PAWS program pairs select TYC youth with K9 partners for 12 weeks. The dogs, who come from local animal shelters, learn basic commands, improved socialization skills, and earn American Kennel Club (AKC) Canine Good Citizenship certification. Youth learn responsibility and benefit from the companionship.

During the 12 week program, youth are responsible for their dogs at all times. They must groom, feed, and train them. The dogs live on the dorm with their human caretakers. To reduce the chances of a pair becoming too attached, youth rotate K9 assignments.

See this Brownwood Bulletin coverage (pdf) from April, when five girls graduated the first class of five dogs. I like this approach a lot. To train a dog requires a level of empathy, patience, and personal responsibility that probably is of greater therapeutic value than many of TYC's formal treatment programs. Plus the act of participating in skills instruction, applying what was taught and witnessing positive results from one's work likely is an alien concept for a lot of kids who end up in youth prisons. However, all such programs I'm aware of seem to exist on an extremely small scale. (Five inmates is a drop in the bucket.) The program is sponsored independently by Ag-Mart, Dr. Pepper, and a couple of local veterinarians, but given poor outcomes for TYC drug treatment, if it came to choosing I might prefer they fund the PAWS program.