Good news: TX prison population down, parole rates up, pols not panicking

While Grits was on vacation, a couple of news items focused on recent reductions in Texas' overall prison population, its causes and implications. On August 11, Mike Ward at the Austin Statesman published a piece titled "Texas prison population shrinks as rehabilitation programs take root." Wrote Ward:

Instead of 156,500 prisoners behind bars in Texas' 111 state prisons a year ago, the lockups now hold just over 154,000 — a drop of about 2,500, according to state statistics. Texas, which historically has had one of the highest incarceration rates per capita of the 50 states, is now in fourth place, down from second two years ago.

Whether the declining prison population is the start of a long-term decrease or a short-lived dip is a matter of debate that will be settled only by time. Still, experts say, prison population declines are occurring in other states, too.

"It's real. It's happening, not only in Texas, but around the country," said Tony Fabelo, an Austin-based criminal justice consultant who coached Texas officials during the 1990s as the state tripled the size of its prison system and is now advising other states on how to decrease their prison populations.

"The challenge is to sustain the outcomes to see how far you can go in downsizing prisons. I have my doubts, but it's an interesting time for criminal justice," Fabelo said. 

Ward attributed the decline to alternatives to incarceration enacted by the Legislature  in 2007, as well as "A decrease in crime rates, changes in demographics and an aging state population [which] also have a role in emptying Texas' prison beds." I agree all those front-end causes are factors in mitigating the growth rate in prisoner numbers: Back in 2007, Texas' Legislative Budget Board predicted TDCJ would house about 17,000 more prisoners in 2012 than actually turned out to be the case. However, there's another big reason for the shift that's less frequently discussed, but which was the subject of a Houston Chronicle story by Cindy Horswell published August 15 ("Texas says rise in paroles gives states bragging rights"): Changes in back-end parole policies to release more prisoners and to reduce the number of parolees who're revoked back to prison. Wrote Horswell:

The [parole] board's report this week boasts 24,342 offenders were approved for parole from Sept. 1, 2010, to Aug. 31, 2011. This represents 31 percent of all who applied and an approval rate that is six percentage points higher than 10 years ago.

At the same time, the number carted back to prison this past fiscal year after their parole was revoked plummeted by 44 percent from a high of 11,374 in 2004.

Instead of fearing accusations of appearing too lenient, state authorities are smiling.

"We are pleased with our continuing increase in granting parole," said Rissie Owens, chairwoman of the state's pardons and parole board. "The use of our parole guidelines to assess the likelihood of a successful parole outcome has been cited as a national model for its positive impact on returning more offenders to productive lives."

The Association of Paroling Authorities International has praised Texas' system which many other states are copying, said board spokesman Harry Battson.

This trend has been going on for a while, but these latest data provide encouragement that it will continue, and that parole board members (all Governor's appointees) are less fearful than in the past of a political  backlash. Check out this telling infographic accompaying the story portraying this remarkable shift:

Some of the rise in parole rates may be attributed to a relatively minor uptick in paroles for serious violent felons who are nearing the end of their prison terms, a development which even victim rights advocates quoted in the story supported. In years past, the parole board frequently kept such offenders in prison until their (often long) sentences were 100% complete, at which point they would be dumped out on the street with $100 in their pocket, little or no reentry assistance, and no community-based supervision by a parole officer. More recently, the parole board has been releasing such offenders a year or two before the end of their term so they'll be under supervision during the period when they're most likely to re-offend. As somebody who hasn't hesitated to criticize parole board chair Rissie Owens and her colleagues for policies Grits considers ill-conceived, I have to give them their props: That's truly a "smart on crime" tactic, using parole powers to improve public safety significantly. In a followup editorial, the Chronicle called this a "belt-and-suspenders approach."

That said, IMO the trend toward reduced incarceration levels cannot and will not be sustained long-term without further legislative action, particularly as it regards sentencing for low-level offenses and funding for community supervision. One big element contributing to prison population declines which wasn't mentioned in Ward's story was 2003 legislation mandating probation on the first offense for low-level (less than a gram) drug possession. That bill diverted roughly 3,000 people per year from so-called "state jails" (which are really not jails in the traditional sense but a euphemism for state prisons housing the equivalent of fourth-degree felons). Grits believes prison population declines won't be sustained in the long run unless the Lege further moderates sentencing, particularly for drug and property offenses.

Still, these data offer hope that Texas may further embrace a rational, conservative corrections policy as opposed to the money-is-no-object, Big Government approach which has dominated since the Ann Richards era.

'Expelling Zero Tolerance: Reforming Texas School Discipline for Good'

The headline of this post is the title of a new policy brief from the conservative Texas Public Policy Foundation arguing that "zero tolerance" policies in public schools cost taxpayers millions will little benefit in increased school safety to show for it. Go here to read the full report.

Prosecutor misconduct roundup: 'Will Texas Republicans line up against prosecutorial misconduct?'

Grits wanted to point out to readers recent media items related to prosecutorial misconduct. First, from the Dallas News' Opinion Blog, see Rodger Jones posing the question, "Will Texas Republicans line up against prosecutorial misconduct?" All I can say is, "They should." Any critic of Big Government who fails to admit that prosecutorial power has exceeded its proper scope either is being disingenuous or simply not paying attention. Over the past few decades, prosecutors have been given so many additional hammers with which to pound defendants into submission - causing the percentage of cases going to trial to plummet to the low single digits - that Texas' Penal Code has begun to resemble a toolshed belonging to J.R.R. Tolkien's dwarves.

Reacting to a  GOP state rep candidate's call in a questionnaire for greater accountability for prosecutors, Jones asked, "The tea party has been expert at raising questions about the size and reach of government. Why should that not pertain to matters of justice as well?" "Why?" indeed! I've never understood why so many self-styled conservatives give police and prosecutors a pass when critiquing government overreach. Grits has come to the conclusion that the issue is perhaps the main distinguishing factor between "Big Government Conservatives" and those who favor "less government" in reality and not only in their rhetoric.

Earlier this month, Jacob Sullum at Reason offered up the story of a federal prosecutor in Arizona who misrepresented a defendant's past statements in court. Appellate "Judge Donald Walter remarked, 'In eight years as U.S. Attorney and 26 years on the trial bench, this is the worst I've ever seen from an assistant U.S. attorney.'" (If he'd practiced in Texas, Judge Walter surely would have seen far worse, if he'd paid heed.)

The New York Times earlier this week in its "Room for Debate" series posed the question, "Do prosecutors have too much power?," featuring short essays on the subject from five guest authors. Focusing mostly on the federal system (though the same quarrels could apply to state statutes), criticisms chiefly centered on the effect of mandatory minimums, which caused the traditional charging powers of prosecutors to morph into de facto sentencing authority, pilfering power bit by bit from judges and juries. The series followed up on a staff editorial by the paper about a New York case in which prosecutors allegedly suborned perjured testimony by a confidential informant.

Another NY Times editorial this week argued that "Prosecutors are rarely punished for wrongdoing. Other sanctions like a reprimand from a bar association, are largely ineffective." The paper argued that defendants should be compensated when courts find federal prosecutors have acted in bad faith as "a check against gross misconduct." See more on the subject from the Blog of Legal Times.

No easy fixes for Texas prison staffing shortage besides deincarceration

Soon after I left on vacation, the Texas Tribune's Emily Foxhall authored a story quoting your correspondent and others on the subject of understaffing at rural prison units operated by the Texas Department of Criminal Justice, accompanied by this informative map highlighting the units with the worst staffing problems:

Wrote Foxhall, "Reasons abound for why the job as a correctional officer is a tough one: Pay is low, most prisons are not fully air-conditioned and inmates are not always happy to be taking orders." My question: Who thinks any of that will change any time soon? Prison guard pay was bumped up slightly two sessions ago to help with recruitment, and recently recruiting bonuses for the most understaffed units were increased from $1,500 to $3,000. But that's not enough to draw people to work at units out in BFE. State Senate Criminal Justice Committee Chairman John Whitmire has basically said more prisons would be air conditioned over his dead body. And inmates will never be "happy to be taking orders." (In truth, few people are.)

Foxhall further cited "a survey by the Texas Criminal Justice Coalition, in partnership with the American Federation of State, County and Municipal Employees," which said the employee grievace process is ineffective. "About three-fourths of those surveyed said they did not find the process to be 'fair and effective'," and Duane Stuart of The Backgate website told her "that staff are hesitant to report any corruption or wrongdoing to TDCJ." (Through Grits' own various back channels and informants, I hear the same thing all the time.) Many of the new security measures aimed at reducing the flow of contraband have fallen most heavily on TDCJ employees, contributing to poor morale, and those aren't going away.

The only lawmaker quoted in the story was Sen. Whitmire, who "agreed that many prisons were built in the wrong places and for the wrong reasons." But his suggested solution doesn't inspire confidence. "Now, he said, legislators need to focus on getting Texans to pay for improvement of conditions for the workers."

However, the 2013 session almost assuredly won't result in higher pay for correctional officers (COs) because of the budget crunch, and in fact Grits expects some lawmakers to seek to cut their benefits and/or further reduce their number. There are more COs at TDCJ than any other category of state employee and even a small pay hike would have big budget implications. And unless they're ordered to provide air conditioning by the federal courts, that problem isn't going away, either.

For a variety of reasons - mostly related to failures of budgetary leadership by the last legislature - the 83rd Texas legislative session's budget debates will be dominated by how to pay for education and healthcare, with the prison and probation systems scrapping for crumbs.  With all due respect to Sen. Whitmire, anybody who claims the Legislature will "pay for improvement of conditions" for prison workers is blowing smoke. One might as well suggest the problem will be resolved through prayer for divine intervention, the way Gov. Perry two years ago called for Texans to pray for rain instead of championing a viable water plan.

Grits was quoted at the end of Foxhall's article making essentially those points, and calling for seizing the opportunity to reduce the size of the prison system:

Scott Henson, a former reporter who writes the criminal justice blog Grits for Breakfast, said increased spending on prisons is unlikely.

“We’re at the complete end of that cycle that was begun 22 years ago. No one wants to foot the bill for how expensive it is,” Henson said.

Most agree that the temporary closures in Kenedy due to staffing shortages are not something to be celebrated, but Henson said that the state should continue efforts to reduce the prison population and close prisons in an intentional manner.

Even after the state closed its first prison last year, Henson said, Texas is operating more prisons than it should be.

See prior, related Grits posts:

• Prison staff shortages and budget reality
• TDCJ can't keep rural units adequately staffed
• Staffing shortages force closure of TDCJ Connally unit wing
• Adult, juvie corrections took 39% of state employee reductions last year
• Juvie, adult prison guards atop list of high turnover state jobs
• 2,000 jobs cut at TDCJ
• 'As TDCJ recruiting slows, overtime usage increases'

Victims of Mexico’s Drug War Rally for Peace and Justice at Texas Capitol

Attention Austinites and those close by! The Movement for Peace with Justice and Dignity, led by renowned Mexican poet Javier Sicilia, is taking part in an historic caravan from San Diego, California, to Washington D.C. in August and September 2012, and it will arrive in Austin on August 25th.

Sicilia, who lost his son in drug-related violence in 2011, is traveling with over 100 family members who have lost loved ones to violence in Mexico. Together, they are advocating for an end to the bloodshed and for new government policies and reforms in both the United States and Mexico that will help to combat violence.

WHAT:               At least 60,000 people have died in Mexico's drug war since 2006, as many as 10,000 have disappeared, and over 160,000 are internally displaced. During the 27 stops along the Caravan for Peace with Justice and Dignity route, families of victims from Mexico will share their stories to highlight the human costs of the war on drugs, while Sicilia and others will discuss policy changes that can reduce drug-related violence. In Austin, Grupo Teocalli Aztec Dancers will be opening the event, and local singer/songwriter Gina Chavez and Kiko Villamizar Y Banda will perform on the south steps of the State Capitol Building.

WHEN:                Saturday, August 25, 12:00PM - 3:00PM

WHERE:          Texas State Capitol Building, South Steps. Parking will be available at the Capitol Visitors Parking Garage at 1201 San Jacinto Boulevard (between Trinity and San Jacinto Streets at 12th and 13th streets).

ORGANIZERS: Texas Criminal Justice Coalition, St. James' Episcopal Church, Texas Fellowship of Reconciliation, Texas NORML, #Yo Soy 132 Austin, MORENA Austin, Austin Tan Cerca de la Frontera, SOA Watch Austin, Austin Immigrant Rights Coalition, Texans $mart On Crime, Austin NAACP, Texas NAACP, and many volunteers

SPONSORS:       Drug Policy Alliance, Market Mail Print, Mi Sazón (Dallas), El Meson, Beanitos, La Michaocana, El Milagro, Sam's Club, Randalls, Nokoa Newspaper, Z-Fashion Jewelry, Loko Dok Computerz, Zona Urbana, CBella Hair Salon, St. Hildegard's Community, Addixxion (band), Saucedo Brothers Boots, and Macho Prieto Toro Mechanical  

Read more about the Caravan here:

• Texas Tribune: Caravan from Mexico Seeks to Condemn US Drug Policy
• Your Valley Voice: 'Fed Up!' Mexican drug war survivors tour Texas 

Read more about Javier Sicilia here and the Caravan route here, which includes Houston on August 26^th and 27th.  

For more information about the Austin event please contact:

Craig Adair, 512-297-6611, cmadair@gmail.com or

Ana Yáñez-Correa, 512-587-7010, acorrea@CriminalJusticeCoalition.org or
Jane Ehinmoro, 512-441-8123, ext. 110, jehinmoro@criminaljusticecoalition.org

WWGD?: APD and TCDA to Pursue Innovative Approach to Drug Enforcement in East Austin

Greetings, Gentle Grits Readers.  Jennifer Laurin here, broadcasting to you from the University of Texas School of Law, and extending thanks to Scott for the opportunity to post while the head honcho enjoys some beach time.  I thought it was important to alert Grits readers to some news on drug enforcement strategy in East Austin that the Austin American Statesman carried on Sunday.  The story followed up on earlier reporting on the options on the table for law enforcement officials faced with few gains and many losses (in terms of resource diversion, official abuses, and erosion of community mistrust) from aggressive policing in the neighborhoods surrounding the open air drug market at 12th and Chicon.  Sunday's story confirmed that the APD intends "by the end of the summer" to launch a new and innovative enforcement strategy often referred to as "the High Point model," drawing its name from the North Carolina city that first implemented it.  Here's an excerpt:

Each police department calls the initiative by a different name. But the steps are the same: Officers use statistics to pinpoint the high-crime drug market areas and work to identify the biggest players within the trade. The most violent and dangerous drug dealers are prosecuted and given harsh penalties, while police work with the community to reach out to family and friends of low-level offenders.

These perpetrators at the bottom rungs are asked to come in for a "call-in," or an intervention, where authorities, neighborhood leaders and families come forward to explain the harm their crimes cause and offer support in changing their ways. But law enforcement officials send the message they will come down hard on violators who break the law again. . . .

Travis County District Attorney Rosemary Lehmberg said authorities are not ready to discuss the specifics of the initiative in central East Austin, but she does not yet anticipate any additional costs to implement it. Reports show some law enforcement agencies have managed to complete the program without taking on extra expenses, while others have sought external funding through government grants.

Acevedo said the Police Department is looking for feedback from neighborhood associations, community organizations and social services agencies willing to participate.

Austin police officers have attended training sessions on the program given by Fealy and visiting officials from Michigan State University, which has followed the progress of the initiative in several cities and was among three colleges awarded federal funding to provide the courses. Acevedo said police have the strong working relationships with neighbors in the area necessary to make the program work.

By way of background, The High Point model is of a piece with a broader trend in policing, known as Problem Oriented Policing ("POP"), in which (roughly) enforcement energy is directed at specific crime and disorder problems experienced in a community.  POP is a close cousin of the (perhaps) better-known Community Policing strategy:  Both require close collaboration with communities in order to identify and target the disorder problems that are occurring, but while true Community Policing emphasizes generating enforcement priorities and strategies from the ground up, POP tolerates more priorities being imposed from the top---with due input from the "bottom."  The High Point model illustrates this: It entails significant community collaboration, both by involving the community in the program's roll-out with early and regular community meetings, and by largely deferring to the community to hold low-level offenders accountable in lieu of incarceration; but, there is a heavy, mandatory, law-enforcement-wielded stick accompanying those carrots, in the form of aggressive and punitive treatment of the most serious offenders.

The High Point strategy has been embraced by critics of one of the country's most controversial top-down enforcement strategies, New York City's stop-and-frisk program.  Indeed, what starteed as an isolated experimental partnership between an academic and a North Carolina police department willing to take a gamble on innovation has evolved into something of a movement in policing reform.  It's been tried around the country reportedly with fairly convincing success---both in terms of crime reduction outcomes, and in terms of community-law enforcement relations.   David Kennedy, the professor of criminal justice who first developed the approach, works with the National Network for Safe Communities to promote and help other cities adopt the High Point model. The organization's website has what appears to be a comprehensive listing of studies that have actually evaluated the approach, for folks interested in further reading.Of course, it's not an unblemished record, and the Statesman story notes that shortchanging implementation---by, for example, failing to maintain close community ties after the initial roll-out---can compromise the program. 

Curiously, the headline to Sunday's Statesman article broadcasts the presence of "doubters" in East Austin, but the story reports only one interview with a neighborhood resident and activist that evinces the kind of skepticism that is foreshadowed.  It may be that the details of the program are still too vague to permit much reflection by prominent community and political leaders, some of whom have called for a community policing model to replace the top-down enforcement strategy pursued to date.  I will be interested to see whether this variation on community policing, combining close community partnership with targeted, punitive sanction, will appeal to those constituencies.  (At the risk of pulling a "gotcha," Grits evinced a favorable disposition to this sort of approach a couple of years back, when he profiled the work of researcher David Kennedy and others in pioneering this program in High Point, North Carolina.)  For my own part, I certainly am favorably disposed toward law enforcement strategies that seek to build neighborhood bonds the process, and that target resources toward the most serious offenders committing the most troublesome crimes for communities.  But often this is easier said than done:  Some police officers are terrific at facilitating neighborhood meetings, conducing youth interventions, and building bonds with citizen leaders . . . but these are not typically the skills that police departments screen for at hiring or build over the course of traditional careers.  Additionally, this is a strategy that requires commitment not just from the APD, but also from the District Attorney's Office, which must follow through on both the stick and carrot ends of the prosecution picture . . . a consistent commitment that could be difficult to rangle from the ranks of relatively autonomous ADAs working these cases, or (down the road) from a new District Attorney if Rosemary Lehmberg does not serve in perpetuity.  We shall see.  For now, I'm cautiously cheered by the spirit of collaboration and innovation (as well as public scrutiny) that was reflected in the Statesman piece.

Important Survey on Mental Health

Good Afternoon Everyone,

It’s Ana Yáñez-Correa from the Texas Criminal Justice Coalition (TCJC), and I’m excited to share a survey invitation with you.

TCJC was invited by the Meadows Foundation to assist in distributing a 9-question, anonymous survey related to mental health.  Specifically, the Foundation is considering the establishment of a Mental Health Policy Research Institute in Texas, and the survey asks individuals in Texas about the particular needs for such an Institute.

The survey is accessible through this link: www.surveymonkey.com/s/Version_10.

The Meadows Foundation will be collecting responses until Friday, August 24, 2012.

You will find more information about the logistics and goals of the survey in the message below from Linda Perryman Evans, President of the Foundation:

Dear Colleague: 

As someone whose insights and opinions we respect, we invite your assistance as we undertake an important project.  The Meadows Foundation, a private family foundation created to serve the people of Texas, is committed to improving mental health services for Texans.  As part of our current strategic plan, we are considering the idea of establishing a Mental Health Policy Research Institute to conduct high quality and objective policy research and development to improve Texas' public mental health system.  (A copy of our Mental Health Strategic Plan can be found here.) 

To help us in our deliberations, we are seeking advice and input from key behavioral health stakeholders and other thought leaders across Texas.  Specifically, we are asking you to help us answer the following questions:  

1.       Is there a need for an institute to focus on policy research and development for the mental health system in Texas, and if so, how could this be used to benefit Texas? 

2.      What are the primary policy issues, immediate and long-term, related to mental health services in Texas that such an institute could be helpful in addressing? 

3.      What is the appropriate role for a foundation such as ours in creating a Texas Mental Health Policy Research Institute?  

To assist us in this phase of our study, we have engaged the TriWest Group to conduct an online survey of interested stakeholders.  All responses are being collected by TriWest and will remain anonymous.  The survey will take about 5 minutes to complete.  The results of this study will be posted on the Foundation's website in early 2013.  

We greatly value your opinion and hope you will share your ideas with us.  To participate, please follow this link to the survey: www.surveymonkey.com/s/Version_10. 

Thank you, 

Linda Perryman Evans

President | The Meadows Foundation 

If you have any questions about the survey, please contact info@CriminalJusticeCoalition.org.

Thank you for your critical participation in this important project!

Grits on break; guest bloggers to sub

Well, the bags are packed, reservations secured, a house sitter arranged, and Grits is off for a couple of weeks of much-needed vacation (a trip delayed briefly, much  to my chagrin, by Hurricane Ernesto). I've asked several excellent, over-qualified replacements to guest blog in my absence, so be kind to them. Even so, posting will likely be relatively light until I return. As always, thanks for reading. Hasta luego ...

'Trends in Juvenile Justice State Legislation 2001 – 2011'

See a new report (pdf) with the same title as this post from the National Conference of State Legislatures. One notable finding:

Recent academic writing on actual innocence

CrimProf Blog has recently pointed out a number of innocence-related academic articles that may interest Grits readers:

• Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right 
• The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem 
• The Unexonerated: Factually Innocent Defendants Who Plead Guilty  
• Introduction: New England Law Review Symposium on 'Convicting the Innocent' 
• Commissioning Innocence and Restoring Confidence: The North Carolina Innocence Inquiry Commission and the Missing Deliberative Citizen  
• Forensic Science and Wrongful Convictions: From Exposer to Contributor to Corrector

DNA testing dominates crime lab backlogs

The Bureau of Justice Statistics recently released the results of a 2009 national survey of publicly funded crime labs. Their topline findings were:

• During 2009, the 411 federal, state, county and municipal labs operating that year received over 4 million requests for a wide range of forensic services.
• At the end of 2009, the nation’s publicly funded crime labs had an estimated backlog of 1.2 million requests for forensic services, which was relatively unchanged from the backlog at yearend 2008.
• Between 2002 and 2009, the percentage of publicly funded crime labs that were accredited by a professional forensic science organization increased from 71% to 83%.
• Publicly funded crime labs employed an estimated 13,100 full-time personnel in 2009—an increase from about 11,000 in 2002.
• The estimated budget for all publicly funded crime labs in 2009 was about $1.6 billion compared to the $1.0 billion budget for labs in 2002.

Of the 1,153,700 backlogged requests at the end of 2009, "forensic biology" (mostly DNA) was the main driver, with 494,400 offender/arrestee samples waiting to be processed, and 399,300 backlogged requests relating to investigating criminal cases. That's 77.5% of crime lab backlogs attributed to "forensic biology."  Controlled substance testing registered the third largest portion of the backlog, with 121,800 pending requests.

MORE: See coverage from the Sacramento Bee.

Proposed DMV rule harms counties, auto dealers' bottom line

In a spasm of coprophagia and economic masochism, Texas' DMV board will vote today on "proposed state rule that would force Texas counties to stop accepting identification cards issued by Mexico when immigrants apply for vehicle titles," reported the Dallas Morning News yesterday (behind paywall). The move will cost counties millions and cost Texas auto dealers even more.

Dallas County Tax Assessor-Collector John Ames argues that banning the cards will result in millions of dollars in lost revenue for counties and car dealerships.

Ames based his figures on a 45-day survey of 1,900 of the county’s auto dealers that showed 10 percent of sales involved matriculas as the primary form of ID. ...

Ames said the matriculas ban would jeopardize more than $3.1 million in annual revenue — $1.8 million from registrations and $1.3 million from Dallas County’s share of sales taxes from car sales.

Throughout all the political banter over the last several years over illegal immigration, Grits has considered it borderline nuts that supposedly pro-business conservatives promote immigration policies that, if implemented, would severely damage the economy. (To their credit, that's why most of the anti-immigrant bills at the Texas Lege ultimately floundered - the state GOP has now begun to walk back their most extremist positions.) Most analyses of the impact of immigration on businesses focus on the effects of a diminished labor pool if deportations were massively stepped up. But as Henry Ford taught the country generations ago, workers are also consumers and their spending contributes significantly to the economy. A $3.1 million hit to Dallas County alone is a big number, but it's just a fraction of the cost to auto dealers and individuals selling their cars, for whom demand and thus prices will inevitably decline if these buyers are excluded.

UPDATE: The DMV board approved the rule, reported the Dallas News, but it won't take effect for one year, which gives auto dealers and county governments to lobby the Legislature next session to undo it. The Lege did not tell the DMV to create such a rule; they did it on their own and the Legislature historically exhibits animosity toward government regulations that harm large business sectors. Time will tell.

DOJ funds pilot to test HOPE court model in Fort Worth

Emily Foxhall at the Texas Tribune yesterday published a feature on efforts in Tarrant County to replicate Hawaii's much-ballyhooed HOPE Court, which is a strong probation model and one of the more successful special sanctions courts which have cropped up in the last decade or so. Referred to by its Hawaiian creator as "probation on steroids," the model engages the judge much more intimately with probation supervision than is usually the case. Here's how Foxhall's story opens:

A Hawaiian court program known as Hawaii’s Opportunity Probation with Enforcement, or HOPE, which strictly enforces criminal offenders' probation periods, has officially arrived in Texas for a test run.

The state’s first HOPE “warning hearing,” in which the judge encourages initial participants to succeed and informs them of the probation rules and consequences for misbehavior, is set to occur Friday in Tarrant County. The introduction marks the start of an experiment funded in part with a $728,364 grant from the U.S. Department of Justice to determine how the Hawaiian HOPE model would translate in the mainland.

The DOJ is also funding teams in three other American cities to test the program.

“This research project is to either prove or disprove that it can be replicated with the same results,” said Judge Mollee Westfall, whose Tarrant County court will pilot the project in Texas. In Hawaii, the HOPE court has already been shown to significantly lower both the drug use among participants and the probability that they will reoffend. The research in Texas is expected to last three years: Participants will begin the program over the next year, spend roughly a year in it and will be tracked by researchers for a year after leaving it.

The Tarrant County HOPE court will focus on felony offenders who have committed low-level drug offenses or property crimes and are at high risk for violating terms of their probation. The model, which resembles other probation programs that already exist in Texas, holds the potential to work with an increasing number of specialty courts in the state.

Fochall also mentioned a couple of new advisory councils created this year by the governor to advise him on specialty courts and other criminal justice questions:

One hundred and twenty six actively operating specialty courts have been registered with the governor’s office. As the number of such courts continues to increase in the state, judges and legislators have emphasized a need to monitor them more closely. A specialty courts advisory council was created this year to review courts that apply for funding from the governor's office, and the criminal justice advisory council reinstated this year is helping to define best practices for the specialty courts in the state.

For more background, see this 2-page fact sheet (pdf) from USDOJ on the HOPE program, and a 2008 Wall Street Journal feature that first popularized the model.

See also prior, related Grits posts:

• Fort Worth drug court modeled after Hawaii HOPE program
• Tarrant judge models strong probation after Hawaii HOPE program
• HOPE program provides strong probation for addicts without mandatory drug treatment
• Hawaii's HOPE program reporting outstanding results
• Levin urges Corrections Committee to mimic Hawaii's HOPE program

The 'Drone Caucus,' TDCJ's mausoleum of mayhem, and other stories

Here are a few odds and ends I haven't had time to write about but which deserve Grits readers' attention:

Reviewing arson convictions
The Fort Worth Star-Telegram had a story over the weekend about the review of arson cases spurred by the Forensic Science Commission's Todd Willingham investigation. See recent Grits coverage.

Dallas seeks to boost fine revenue from Class C tickets
See coverage from the Dallas News (subscribers only), Texas Watchdog, and the Courthouse News Service of proposals in the City of Dallas to expand revenue from Class C tickets, mostly by limiting judges' discretion in various ways. Here's a link to an interesting briefing (pdf) from an assistant city manager on the subject. See prior Grits coverage.

Punishment for thee but not for me
The head of Austin's police union says punishing officers who engage in misconduct through unpaid suspensions doesn't work. He told the Austin Statesman that "he's an advocate for education-based discipline, under which instead of taking a day or more off work without pay, officers are required to attend classes, training, write a paper or make a presentation that addresses the incorrect behavior." Noting that the number of one-day suspensions has increased in recent years, union President Wayne Vincent said, "Our argument is, if they're still increasing, are all these suspensions changing behavior? ... From the association's standpoint, I think the answer is no." But couldn't you make the same case about DWI or drug arrests, much less Class C tickets issued by police?  Ironic, isn't it, that law enforcement thinks monetary punishments work for petty offenders, but not for themselves?

On public goods and privatizing the courthouse
Travis County Commissioners are considering privatizing the construction and operation of a new county courthouse, bypassing voters to issue $343 million in debt for the project. As a voter, I disapprove of spending that much on capital projects without an opportunity to weigh in (taxes in this town are already way too high.) But there's also a practical question: What if the corporate partner goes bankrupt or pulls out of the deal down the line? That's happened often in so-called "public-private partnerships" involving jails. What makes anyone think it won't happen if courthouse costs exceed initial estimates and become unprofitable for the corporate partner a decade down the line? The criminal justice system is a public good, monopolized by the government, so the "market," as it were, is distorted against the interests of taxpayers. A company can file Chapter 11 and walk away, while taxpayers are on the hook no matter what. Socializing risk and privatizing profits is nearly always a bad idea.

TDCJ's mausoleum of mayhem filling to the brim
The cemetery for indigent prisoners in Huntsville is filling up. Grits wonders whether formal executions or heat-related deaths make up the greater proportion of those buried there? I also wonder how it is that none of these phony-baloney Sci-Fi channel shows (of which there are now a ridiculously large number) about wanna-be ghost hunters hasn't featured this mausoleum of mayhem? Reported UPI, "The cemetery is a virtual checklist of some of the state's most infamous murderers."

TDCJ, illegal immigration, and mission creep
According to the Victoria Advocate, TDCJ deployed COs on horseback and tracking dogs to help DPS search for suspected illegal immigrants. Talk about mission creep! They'll need a lot more staff than they've got if they're going to engage in that sort of activity too often.

Resource on automated license plate readers
The national ACLU has a page up on their project to document use of automated license plate readers and promote regulations on their use. Check it out.

Little oversight of killings by border patrol
Mellissa del Bosque at the Texas Observer has several stories on border-related issues I haven't seen covered in any other state-level media (though one of them spun off from a PBS report in April). First, she brings word of a media collaboration to identify and investigate cases where Border Patrol agents killed unarmed people. PBS' Ray Suarez wrote that "Because border patrol agents are part of the Department of Homeland Security, they are not subjected to the same public scrutiny as police officers who use their weapons. It also questions whether, in the rush to secure the border, agents are being adequately trained. And it raises the question: why aren’t these cases being prosecuted?"

'Civil detention' = pork for private prisons
See coverage from the Observer of a new "civil detention center" in Karnes County which will be run by the GEO Group. Del Bosque wrote that "the Obama administration is trying to take a step toward reform, but it’s really more of the same." I almost agree with that. Grits would have said "the Obama administration is trying to make it look like they're taking a step toward reform, but it’s really more of the same." Immigration detention for several years has been private prison companies biggest cash cow.

The Congressional 'Drone Caucus'? ... Ugh!
Also via del Bosque at the Observer, seven Texas Congressmen are members of the "drone caucus," which was created to promote domestic use of unmanned surveillance drone technology. See their full membership and mission statement.

The economic costs of heightened border security
At the Houston Chronicle, Dudley Althaus last week had a story with massive border security implications, though it's not framed that way, about growing wait times to cross the Texas-Mexico border. Grits has been harping on this point for years: Calls to "close the border" ignore the massive benefits from Texas and the USA's economic relationship with Mexico, particularly with our southern neighbor adding massive Pacific port capacity and many Asian goods coming into Texas via Mexican highway and rail systems. However, "Depending on the hour and the location, crossing cargo from Mexico into Texas and other U.S. border states can take five hours or more." As much as the US (and for that matter, Texas) spends on "border security," the sum is dwarfed by the vast value of goods crossing the border in both directions. The economy benefits most by expanding the flow of goods, services, and arguably labor crossing the border in both directions.

Prison staff shortages and budget reality

The Lubbock Avalanche-Journal has a feature on a subject covered on Grits the other day titled, "Texas prison officials struggle with high turnover rate, staff shortage" (Aug. 6). The story by Aziza Musa opened:

Surprise inspections find shortstaffing at root of youth lockup violence

Despite demagoguery aimed at administrators at the Texas Juvenile Justice Department in the wake of recent escapes and violence at the units, surprise inspections at TJJD units, reported Brandi Grissom at the Texas Tribune today, revealed the worst problems stem from chronic understaffing, which mainly arises not from agency decisions but from legislative dicta and budget pronouncements. Wrote Grissom:

Among the major concerns Kimbrough noted from the report was the staff-to-youth ratio. Currently, there are about eight to 12 youths for each staff member at the TDCJ facilities, he said. He'd like to see that improved to about six youths per staffer. In the last week, the TJJD has begun advertising for part-time staffers, he said. The agency is seeking 20 part-time workers at four of its facilities and 10 for a fifth.

Hiring additional staff, [interim executive director Jay] Kimbrough said, would allow existing workers to log fewer hours on the job, which would reduce their stress and make both the staff and the youths safer.

“It’s a pretty stressful week, and working 60 hours every week for 50 weeks is pretty stressful,” he said.

So far, the agency has received 16 applications for the 90 part-time jobs available.

Grits has maintained for some time that staffing levels - not a shortage of solitary confinement cells or the failure to treat youth more harshly - are the root cause of the agency's troubles, along with a failure to implement various best practices advised by experts the state convened to suggest reforms back in 2007. Despite over-the-top criticisms by legislators that TJJD administrators exhibited a "hug a thug" mentality, it's the Legislature, not agency administrators, which decides how many JCOs TJJD get to hire and what they are paid. The findings from these surprise inspections remind me of an old chestnut my mother was fond of when I was a kid: When you point a finger at someone else, there are three pointing back at you. That applies in spades to legislative critics of TJJD's remaining youth lockups.

The other big issue confronting Texas youth prisons - the failure to replace TYC's old treatment programming with a viable alternative - was raised by Texas Appleseed's Deborah Fowler in the final paragraphs of the Trib story:

Juvenile justice advocates applauded the agency’s efforts to address systemic problems that have contributed to violence and escapes. They said they were pleased that TJJD officials are doing more than simply punishing youths considered bad apples. But Deborah Fowler, deputy director of Texas Appleseed, which advocates for juvenile justice reform, said that the agency also must examine the programming it offers to rehabilitate youths. If that program is ineffective, she said, then problems will continue to plague the juvenile correctional system.

“The big, glaring problem is the failure to adequately implement rehabilitative programming for some of the kids in the juvenile system who are most desperately in need of it,” she said.

As long as those problems persist, she said, the agency may succeed in moving the violent youths temporarily, but another will simply take their place because the juveniles aren’t learning effective ways to cope or appropriate ways to behave.

Relatedly, at the Austin Statesman today Mike Ward has a story today on the implications of research in recent years regarding adolescent brain development on the juvenile and adult justice systems.

To Grits, those two elements - increased staffing levels and implementing a viable, evidence-based treatment plan - would make a bigger difference than all the git-tuff demagoguery Texas pols can muster.

See related, recent Grits posts:

• Phoenix program aims to neutralize violent inmates at Texas youth prisons
• Adult prison model wrong approach for juvenile offenders at TJJD
• Here we go again: Is TJJD creating juvie ad-seg at Texas youth prisons?
• Solitary confinement at Texas youth prisons: A brief history 
• Violence at youth prisons blamed on lax discipline; structural problems ignored

'Labeled for Life'

Via Mary Sue Molnar with the group Texas Voices, here's an MSM treatment of sex-offender registration for juveniles that may interest Grits readers:

Alternative punishments in Brazil promote inmate health, literacy

Via forensic psychologist Karen Franklin at her blog, In the News, I was fascinated to learn of this July 10 AP story describing a couple of new initiatives in Brazilian prisons that merit consideration for US import:

'The Police State is Here': Conservative critiques of Big Brother

 These few, disparate items with caught Grits' attention related broadly to limits, or the lack thereof, on government power:

Conservative critiques of Big Brother
A reader forwarded a link to an interesting pair of stories from the Rockwall County News (July 26). See here (pdf) - the articles in question are the second and third ones on the first page, scrolling down, with these headlines:

• Will you be the next peaceful traveler? A scenario and analysis of judicial practice
• The Police State is Here

The second story laments that "So-called fusion centers have popped up in 49 states, amassing files on ordinary Americans for doing the most ordinary of things." These articles interest me not because of their incisiveness - I could quibble with aspects of both of them - but because they portray critiques of the criminal justice system from the perspective of populist conservatism.

Texas let DEA install license plate readers
Speaking of fusion centers and gathering data on ordinary Americans, the national ACLU has launched a research effort to gather information about automatic license plate readers. Their press release mentions:

The Drug Enforcement Administration is planning to install a network of plate readers on major highway systems nationwide. The Department of Homeland Security clocks every car that enters the country. Local and state police departments operate many thousands of ALPR systems nationwide—how many and to what extent, we aren’t sure. Together these programs form a network of data points that can tell the government a lot about our lives.

The Texas Department of Transportation in 2008 rejected a DEA request to install license plate readers on Texas highways, however another recent ACLU blog post stated that "scanners are already in place on 'drug trafficking corridors' in California and Texas." I was unaware that 2008 decision had been reversed. Does data from license plate readers, one wonders, funnel up into so-called "fusion centers"? Who besides DEA has access to this information?

Cops get database with Texans' Rx prescription information
Texas is developing other large databases that a civil libertarian may fear would be uploaded into fusion centers or used by various government entities for reasons unrelated to the purpose for which they were created, particularly a "new state online database of patient prescription drug information." Reported the Fort Worth Star-Telegram, "DPS officials say the database is secure and, beginning this month, available to registered users who provide licensing information, including law enforcers." And if it's available to "law enforcers," why couldn't the data be uploaded to fusion center databases?

On the political economy of the militarization of domestic policing
While we're on the subject of conservative critiques of the criminal justice system, check out this academic article critiquing the "the political economy of the militarization of domestic policing" from the perspective of the Law and Economics movement. Here's a notable passage attributing abuses to the government's near "monopoly" on use of force:

One reason governments are able to effectively exploit their citizens is because they maintain a monopoly, or near monopoly, on military force. It is the concentration of military power, with its weaponry, organizational structure, and tactics that serves as the ultimate tool of government abuse. The threat of violent force raises the cost of deviations from government decree and can be used to repress citizens. As per the paradox of government, this leads to the central concern that while force can, in theory, serve the function of protecting citizens from threats to their person and property, it can also be used by the political elite to undermine the very rights government is tasked with protecting.

Fourth Amendment as a campaign issue
Finally, Grits found it fascinating that legislative efforts to restrict TSA pat downs at airports became a campaign issue in the Texas GOP US Senate runoff, and it seems highly likely the topic will be revived next year when the Texas Legislature meets again. For many years the only time the Fourth Amendment came up in Texas campaigns was when politicians (from both parties) promised to scale back its protections in response to the "war on drugs" and/or the "war on terror." The measure turned out to be immensely popular with the GOP base and perhaps could open the door to more legislation aimed at bolstering Fourth Amendment protections (which couldn't happen soon enough to satisfy this correspondent).

Read more here: http://www.star-telegram.com/2012/08/02/4150020/state-launches-online-database.html#storylink=c

TDCJ can't keep rural units adequately staffed

Faced with dwindling staff, TDCJ had to close several more dorms at a South Texas lockup. Quite a few other units also face significant staffing shortages. Reported Mike Ward at the Austin Statesman ("Staffing shortages idle more beds," Aug. 2):

Four additional dorms housing 320 convicts are being mothballed at a large maximum-security South Texas prison because of a continuing shortage of staff at the lockup, officials confirmed this afternoon.

The move marks the largest such temporary closure of portions of a state prison in well over a decade, even during previous staffing stages that forced dorms at several prisons to be mothballed for many months.

Jason Clark, a spokesman for the Texas Department of Criminal Justice, said the convicts will be transferred from the Connally Unit in Kenedy, about 55 miles southeast of San Antonio, to other state prisons in coming weeks.

“The agency has sufficient capacity to temporarily idle these beds without causing a capacity issue,” Clark said. “We are doing this to help deal with staffing challenges at the unit.”

The agency doubled its recruitment bonus for understaffed units but that's not been enough. The same unit had to close several dorms in June because of staffing shortages.

Grits believes the state prison system has essentially maxxed out the political system's willingness to pay for it: The agency can't adequately staff rural units and the Legislature is unlikely to boost pay to make them competitive either with oil and gas or jobs in the city. Moreover, the Lege underfunded prison healthcare and the agency is spending well beyond budgeted amounts on that line item. (Private contractors have said they're unwilling to seek contracts to provide prison healthcare unless the Legislature budgets more for the service, and UTMB has threatened to stop providing services unless they're paid more. Last session the Legislature tried to mitigate the funding crisis by passing off more costs onto inmates' families for healthcare costs and phone calls and slashing vocational programming to the bone. Food spending has been reduced in recent years despite rising global food prices. Further cuts risk ending the agency up in federal court.

So unless the Legislature is willing to boost the agency's budget by perhaps $100 million or more -- and in the current budget situation the opposite seems more likely -- these trends aren't sustainable and they certainly can't achieve much more savings by the same means.

Several other TDCJ units are chroniclally understaffed. Here's a list of those where staffing shortages are most severe, according to a May 31st report from TDCJ. (Percentages represent the proportion of budgeted correctional officer slots filled at each unit.)

McConnell    59.89%
Connally       59.30%
Smith            61.85%
Dalhart         67.80%
Daniel           63.17%
Ware            65.03%
Wallace        70.19%

Grits realizes I sound like a broken record, but given the tight budget and increasing fiscal conservatism at the Lege, the best solution is to reduce the number of prisoners and close multiple units. Last session the Lege tried to nickel and dime the issue and cut all they reasonably could (indeed, some of the cuts were arguably unreasonable - particularly on healthcare), and the 2013 budget will be put up or shut up time.

Adjusting the statutes to reduce inmate populations actually wouldn't be that difficult to accomplish without harming public safety and could be achieved through modest changes in criminal statutes - notching down penalties for drug possession (but not dealing) by one penalty category, for example, or adjusting theft categories for inflation (the dollar amounts were set in 1993).

No one doubts the next Texas Legislature will be among the most conservative in recent history. But as it pertains to criminal justice, the question becomes, are these new entrants to the Lege "fiscal conservatives" or authoritarian ones? Prison is the ultimate manifestation of socialism - everyone treated equal, the state paying for everything - and there are many Big Government conservatives who embrace the concept completely uncritically. OTOH, there are plenty of small-government conservatives who may be more open to cutting costs and reducing incarceration levels during a period of declining crime - particularly for nonviolent offenders and those with low risks of recidivism. Which brand of conservatism will dominate the 83rd Texas Legislature on these subjects remains to be seen, but practical budgetary considerations at this historical juncture favor the small-government variety.

RELATED: Six Impossible Things: Do you believe in a conservative, rational and smaller corrections budget?

Executing Lennie, and other stories

Here are a few items I haven't found time to write about but which merit Grits readers' attention.

Executing Lennie: Court of Criminal Appeals draws from literature instead of science on mental retardation
Danielle Citron at Concurring Opinions argues that, "Texas ... has translated the Supreme Court’s categorical ban on executing offenders with MR [mental retardation] in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of 'Briseño factors' (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption. The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind.  Although literature can tell us much about society and  law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation. That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals." See more from Simple Justice.

When your business goes undercover but the government fails to tell you
What rights do business owners have when the government decides to use their property and employees to haul drugs as part of a sting operation? Apparently not many.

The evolution of Texas' Forensic Science Commission
For those interested in the Forensic Science Commission's work, the group just put out their first annual report (pdf), which actually covers their activities back to the commission's creation in 2005, since they've never done one before. Lots of detail here.

Crescent City consent decree
A federal consent decree with the New Orleans Police Department requires them to begin recording interrogations. According to the Wrongful Convictions Blog, "Among the changes outlined in the decree: how cops must conduct traffic stops, searches and arrests; how they examine officer use of force; and how they interrogate citizens."

The science of eyewitness memory
Wired magazine has a discussion of the subject reacting to new jury instructions issued July 19 by New Jersey’s Supreme Court

Poor Mexico: So far from God ...
The Houston Chronicle has a series of blog posts from experts at the Baker Institute on issues related to the border and the drug war in Mexico.

Media matters
See a roundup of "the best investigative reporting on US prisons."

Does Tarrant ME deserve praise following FSC 'professional misconduct' finding?

The Fort Worth Star-Telegram today has a story on drylabbing at the Tarrant County Medical Examiners office and recent findings of professional misconduct by the Forensic Science Commission, which Grits reported last week. The FSC had commended the Tarrant ME for self reporting, however:

Critics, including some of the nation's forensic scientists, say "not so fast."  

"They are going to do a commendation to the lab for doing its job -- for doing the bare minimum?" said Amy Driver, a forensic scientist in Washington, D.C., who hosts a blog on the forensic science community.

A deeper examination is needed because the findings call into question the serologist's previous work, they said.

When someone has done something "grossly dishonest,'' said Maine forensic scientist Thomas L. Bohan, "you have to really suspect everything that person has done."

How can crime lab officials be assured that other problems don't exist?, they asked.

"If I was put in prison based on a test that guy had done and if I was the attorney who represented someone based on the DNA test, I'd be hammering down the door of the courthouse to get my appeal in,'' said Driver, who is a firearms examiner and an expert on crime-scene reconstruction."That's outrageous."

An investigative panel of the commission announced at the meeting Friday that the lab doesn't need to do further testing.

Grits can see both sides of the question: On one hand, labs are in a damned if you do, damned if you don't situation. You want agencies to self report when something goes wrong and it would be unfortunate if doing so means the good actors are punished more than those who conceal problems. OTOH, the FSC's fulsome praise of the Tarrant ME may stem to some degree from deference on the panel to their former chair, Dr. Nizam Peerwani. I too, during the discussion on Friday, felt that the ME was being praised too much merely "for doing its job." After all, labs have a self-interest in self-reporting, because a) it's required by law and b) managers will get into much more trouble after the fact if they don't. So yes, Dr. Peerwani acted quickly to suspend the employee and review his old cases, but isn't that what he's supposed to do?

In the big picture, it's part of the culture of law enforcement organizations (LEOs) that any time they're found to have engaged in misconduct, critics and the media are expected to frame their analyses to highlight everyone's good intentions. Otherwise, LEOs just become defensive and clam up (or sometimes counterattack). You see this repeatedly when police departments or District Attorneys are criticized, but the same dynamic goes on with crime labs at the FSC. The commission's reports tend not to soft-pedal the details of alleged negligence or misconduct in the cases before them, but they often go out of their way to praise agency managers for just "doing their job."

Maybe that's the most politically effective tactic: One catches more flies with honey, after all, than with vinegar. But especially when doing that with regards to an agency run by one of the commissioners, as in this instance, there's a potential for the appearance of whitewashing. It's certainly a fine line to walk.

Read more here: http://www.star-telegram.com/2012/07/30/4139295/state-panel-commends-tarrant-crime.html#storylink=c