On law enforcement as rent seeking: A lament

A couple of recent stories reminded me of the extent law-enforcement has come to be viewed by many in government as a revenue enhancer as opposed to a means dispensing justice.

On Saturday, the Houston Chronicle ran a story titled, "Ticket dismissals cost Houston, thanks to plea bargains," lamenting that traffic ticket cases in municipal court aren't bringing in more money. The police union president opined that, "Traffic tickets are rarely dismissed because of problems caused by Houston police officers who write up the infractions," but others in the system pinned much of the blame on exactly that cause. "Sylvia Garcia, the former chief judge of Houston municipal courts, said prosecutors are often forced to dismiss or plea bargain traffic cases set for trial when witnesses, such as police officers who issued the ticket, are not available to testify," reported the Chronicle's James Pinkerton. And Houston traffic attorney Paul Kubosh "estimated that 30 to 40 percent of officers subpoenaed to testify don't appear for trial."

Whatever the reason, the story frets that "The substantial number of dismissals, which costs the city millions in lost revenue, is a result of an overburdened court system reliant on plea bargaining, according to police union officials and attorneys." Coupled with an overall decline in tickets written recently, both in Houston and statewide, the result is the justice system generating less revenue. Of course, that's not its purpose, or it shouldn't be.

In Dallas, the city council fired several municipal court judges they thought were being too lenient and brought on newbies who they expect will generate more revenue for the city, a move which has sparked intense controversy and a lawsuit.

On a similar theme, I was interested to see an AP story published in the Lubbock paper (Sept. 3) lamenting lost revenue from truancy by students which noted that:

The attendance push has been particularly strong in California, New York, Texas and other states where schools funding is based on how many children are in their seats each day, rather than enrollment. Several California districts have made a back-to-school ritual of reminding parents that schools lose money whenever kids are out.

Some have asked families with children who missed school for avoidable reasons such as family trips to reimburse schools the $30-$50 a day the absence cost in lost funding, or at least consider having a child with the sniffles or a stomach ache show up for the first part of the day so he or she can be counted before going home sick.

“If a child is not at school for any reason at all, including sickness, the district does not collect revenue,” the Spreckels Unified School District in Salinas, Calif., wrote in a pledge form issued this month asking parents to take vacations and to schedule routine doctor’s appointments when classes are not in session.

Under pressure from the local district attorney (emphasis added) and others to improve its attendance rate, officials in Berkeley last year got much stricter about demanding meetings with parents of students with three unexcused absences and conducting midday “sweeps” of local teen hangouts to identify ditchers. By June, the district had made $1.4 million more for the current school year and avoided laying off 148 teachers, said student services director Susan Craig.

How often is law enforcement dragged into truancy enforcement? A bill analysis from failed 2011 legislation at the Texas Lege declared that, "there were 65,521 cases filed for parents contributing to nonattendance in the municipal and justice of the peace courts of the state" in the previous fiscal year. I have no problem with schools making every effort to identify students who miss class and work with their parents get them to school as a means of dropout prevention. But I've got a big problem with criminalizing everyday juvenile behaviors and diverting criminal justice resources from public-safety for rent-seeking purposes, particularly when the agencies doing so will later turn around and raise my taxes. To me, kids skip school (and parents condone it) because the product is often not of sufficient quality to make it a big priority for them. Then the state punishes them for voting with their feet.

Austin police staffing "shortage" stems from subsidies to well-off residents

Would Austin need to hire more officers in its new budget if police deployment practices stopped subsidizing alarm companies and wealthy neighborhoods at the expense of low-income residents and high-crime areas? Probably not, or at least that's Grits' reading of a recent consultant's report on staffing (pdf) by the Police Executive Research Forum (PERF).

The third most common type of police call in Austin (34,003 dispatches in 2011) is responding to burglar alarms, according to PERF's "Patrol Utilization Study." The report was commissioned by the city and has been spun by the media to argue that the department needs increased staffing to keep up with population growth. But deep in the document (and ignored by the local press) we learn exactly what proportion of officer time is spent driving around low-crime wealthy neighborhoods (presumably to prevent crime) and responding to nearly-always-false burglar alarms.

Buried in the study (but not reflected in its recommendations) was the following observation: "The high number of burglar alarms, 5.2% of the total dispatches, indicates that a re-examination of the city’s alarm ordinance may be warranted. Jurisdictions that have reduced alarm calls have levied heavier fines for false alarms, levied fines sooner with few or no 'free' false alarms, or required alarm companies to verify the validity of an alarm before the police are summoned." These authors failed to publish the current false alarm rate, but previous a 2007 APD report found it to be about 99 percent.

That much time spent responding to false alarms (IMO) improperly shifts policing resources toward more wealthy parts of town and undermines so-called hotspot policing in more crime ridden areas. The west-side Adam, Baker and David sectors (see an explanatory map) of the city cover some of the wealthiest areas of the town, and they also have the highest numbers of alarm responses. (See p. 22 of the report, which is p. 31 of the pdf.)

In the past Grits has strongly criticized the needless focus on responding to burglar alarms and so have internal Austin PD analyses. In 2006, out of 39,354 burglar alarm calls to which APD responded, they only made 11 arrests, compared to 7,467 actual burglaries reported that year. Poor folks (who are more frequently targets of crime) mostly can't afford elaborate alarm systems that bring out the police, so this practice amounts to a subsidy to the well-off at the expense of lower-income residents - one garnering very little crime fighting bang for the buck - not to mention a massive taxpayer subsidy to alarm companies.

And speaking of subsidies to the rich, the Adam sector notably is also the only area of town where "directed patrol" accounts for the largest category of "dispatch types," though crime rates in the area are among the city's lowest. The PERF report identified 33,039 total dispatches in 2011 for "directed patrol," with a whopping 10,842 in the Adam sector (out of nine total sectors around the city). Directed patrol is defined in the report as "patrolling critical infrastructure sites in those sectors," but that looks to me like it translates in practice to patrolling areas where rich folks live as opposed to where most of the crime occurs. The Adam sector was the only one where any dispatch category (in this case directed patrol) exceeded the number of traffic stops, which led the number of dispatch types in all other sectors.

Instead of expanding patrol ranks (what are we going to cut this time to pay for yet another round of police hires?), Austin should deploy the officers it has more thoughtfully. Alarm companies should be required to verify a burglary occurred before sending the call through to the police, and officers patrolling rich neighborhoods should be focused more on high-crime areas and/or re-deployed to undermanned investigative units. In tight budget times, everyone else in government has been forced to "do more with less." That meme should apply to APD as well.

Law enforcement dominates local government spending increases in Austin

If you live in Austin, here are a pair of recent Statesman stories which demonstrate how much of your rising tax bill is attributable to spending on law enforcement:

• Austin police request 7% increase in new budget, partly for officers, Aug. 22
• Travis County peace officers see an average raise of 10.5% at cost of $10.1 million, Sept. 1

See also from the Austin Chronicle, "Public Safety: A Growth Industry," Aug. 31

Now consider this recent Statesman headline: "Property taxes in Texas up nearly 200% over the last two decades, comptroller says," (Aug. 23). For perspective, check out the left-column charts on page three of this report (pdf) from the Texas Comptroller documenting property tax and sales tax increases over the last two decades. Both categories of taxes have increased well beyond what would have been needed to keep up with population growth and inflation. An earlier Statesman report found that, even adjusting for inflation, "The property tax bill for a typical Austin home rose 38 percent between 2000 and 2010," with tax levies by the City of Austin increasing an inflation-adjusted 44%.

Almost all of the City of Austin's recent increased spending is attributable to the public safety budget. In 2010, the Austin Chronicle quoted city councilmember Bill Spelman who calculated that, "'Over the last 10 years, public safety spending per person, in real terms, has gone up by nearly 50 percent since the year 2000,' a 45% increase from $365 to $529." Meanwhile, "'Spending on everything else in the General Fund, has gone up by 2 percent since 2000,' from a little over $175 to $178." Said Spelman, "We've taken all the new money we've gotten from property taxes, sales taxes, and what have you, and put it all into public safety. And none of it into parks, libraries, health and human services, development services, and so on. It's all gone to public safety."

Nationally one hears conservatives complain about public-employee unions as a major driver of government spending, but at the local level in Austin that's mainly only true of law enforcement. Teachers and other government employees don't have the clout to command the kind of raises one routinely sees among peace officers in the capital city.

DPS reaching limits to unsustainable crime-lab model: Tells agencies to reduce DNA, drug testing requests

Struggling with massive backlogs and ever-expanding caseloads, the Texas Department of Public Safety crime labs have asked departments to limit the amount of evidence sent to them for testing in controlled substances cases, as well as limiting the number of DNA tests they'll do in a given case. DPS provides these services at no cost to the local jurisdiction, which has led to massive backlogs. Reported the Corpus Christi Caller-Times ("Department of Public Safety crime labs limits (sic) DNA, drug testing," Sept. 1):

The department sent a letter to law enforcement and district attorneys statewide announcing the changes that limit the DNA and drug testing crime lab technicians will perform.

Controlled substance and blood alcohol cases have increased by nearly 500 percent within the past six years in the 13 crime lab facilities in Texas, according to an Aug. 6 letter.

Because of this, the labs cannot conduct the test reports in a timely manner, the letter states.

Starting next month, the labs will not test certain quantities and types of drugs in misdemeanor cases including suspected marijuana or synthetic marijuana less than 4 ounces, an array of prescription pills less than an ounce or identifiable prescription pills.

The department doesn't want law enforcement to send those misdemeanor cases unless a prosecutor specifically requests the lab reports for trial. ...

Another letter sent to various law enforcement explained crime lab analysts also will soon restrict the amounts of DNA per case they will test.

The policy change, which also went into effect Saturday, include only two DNA tests for each burglary offense and 10 for each homicide.

"In a murder scene you may have hundreds of pieces of evidence and now we're limited to send our top 10," Corpus Christi Police Capt. Billy Breedlove said.

That doesn't mean, of course, that more testing can't be done. Some larger agencies have their own crime labs, and others use fee-for-service labs where they can send as much evidence for testing as they can afford.

Still, it's notable that, despite massive recent crime-lab expansions, DPS has basically raised the white flag. Their model of providing unlimited, free crime lab services for local jurisdictions is fundamentally untenable. I'm frankly surprised it took this long to recognize it.

Coincidentally, since I hadn't yet seen this report, just yesterday Grits had opined that, "DPS' 'free for everybody' model creates false incentives and is IMO unsustainable as demand for crime lab services is growing much faster than the actual crime rate. Switching to a fee for service model would rationalize the process from a budget perspective and stop taxpayers in jurisdictions with their own crime labs from subsidizing the rest of the state. It's probably something the Legislature should consider next session." This news makes me think that suggestion is more ripe, even, than I'd suspected. There's nothing "free" about the criminal justice system, and for crime labs it's probably time to shift to a pay-as-you-go approach before backlogs get even worse.

Juvenile justice agency outlines critical needs, plans for 10% budget cut

How would the Texas Juvenile Justice Department comply with the 10% budget reduction next biennium requested by the Governor? TJJD's legislative appropriations request (LAR; large pdf) suggests three options:

First, closing two to three secure institutions and one halfway house would preserve funding for establishing smaller, more effective county treatment programs for most youth offenders. This approach would result in consolidating 400 to 600 youth into the remaining state facilities, and thereby increase safety and security risks in those facilities as well as the challenges for effective treatment and educational programs. Small-milieu treatment environments would likely be sacrificed due to the consolidation of population in remaining facilities. Two other options identified in the required detailed schedule would also have detrimental impacts: eliminating all funding for prevention and early intervention programming and contracting out all parole
responsibilities.

If those are truly the only three options (or the only ones the Lege will consider on advice from the agency), Grits would probably prefer the first one, though it'd be penny wise and pound foolish if "Small-milieu treatment environments would likely be sacrificed due to the consolidation of population in remaining facilities."

Bottom line: The risk to consolidating juvenile probation with youth prisons was always that, when push came to shove with the budget, "secure facilities" would be prioritized over community based programming, which has by all accounts worked well. (Everyone, myself included, was pleasantly surprised when juvenile crime continued to fall after the Lege cut youth prison populations by an astonishing 2/3, and that result is mainly attributable to the efforts of juvenile probation departments.) At least the first option wouldn't fall into that trap, though obviously it wouldn't be ideal. Since the agency reforms first began five years ago, virtually every expert consulted by the state has recommended smaller facilities, not larger ones.

TJJD also requested ten "exceptional items," or funding for projects not in their current biennial budget. The first four relate to safety and security - boosting staffing at facilities, spending on deferred repairs to everything from fencing and lighting to complying with fire and safety codes, revamping staffing approaches to overtime, and completing their Juvenile Case Management System.

The next three exceptional items relate to plugging critical programming gaps in ways that IMO would improve public safety:

The fifth and sixth items also target critical needs for juvenile probation departments. The fifth item, for $15.2 million, would address a significant gap in mental health services to juveniles under their jurisdiction, with special focus on 12,000 mentally ill juveniles held in pre- and post-adjudication correctional facilities annually. Of the total biennial cost, $4 million per year would support hiring licensed mental health providers for each of the 47 departments operating such facilities; $3.8 million each year would fund contracted mental health services for departments without secure facilities. The sixth item, for prevention and intervention services for youth at risk of becoming involved in the juvenile justice system, would provide needed funding for a new agency responsibility from the 82nd Legislature. For each year, $6 million would support grants for community programs and services that have demonstrated success. Proposed costs would also cover an independent program evaluation and one FTE for grants tracking, reporting, and maintenance. The new funding and position would be added to $3 million each year and one position allocated in the base budget.

The seventh priority request, for $1.3 million and 8 FTEs, would enhance the preparation of youth for re-entry into their communities by expanding certain programs that have demonstrated success, including Positive Behavior Interventions and Supports (PBIS) for the education program, Aggression Replacement Training (ART®), and services for gang-involved youth modeled on the GitRedy grant in Harris County, which expires in September 2013. Expansion of each of these programs, beginning in state operated secure placements and provided through parole status, would increase the chances for success of the TJJD’s most challenging youth.

Item eight would spend $6.3 million to relocate TJJD headquarters: "The agency did not request relocation," according to the LAR, but was notified by the Texas Facilities Commission (TFC) that their analysis of the best and most efficient use of state building space might result in the need for relocating TJJD central offices."

Other exceptional items requested include $400,000 for "consolidated data center payments for costs related to the creation of the new agency," and $300,000 "to replace grant funding with general revenue to continue statewide visits to TJJD facilities. The new funding would support salaries and travel costs for two positions." It should be noted that without travel funds to visit facilities, the Ombudsman's office probably could not continue to function in any meaningful fashion.

El Paso hires private crime lab for in-house testing

In July, Grits published a post predicting that "El Paso may close crime lab, outsource controlled substance testing," and the El Paso City Council this week pulled the trigger on the deal, though not without some debate, reported KVIA-TV ("El Paso city council hires outside lab to run police department's crime lab," Aug. 28) which let us know that "City Council voted 6 to 1 to hire Integrated Forensic Laboratories (IFL) the group hired temporarily to help with that out-sourcing, as a permanent in-house option." But the decision wasn't without controversy:

It will cost about half-a-million dollars a year or $2.5 million over the next five years.

City Rep. Dr. Michiel Noe voted against it because of that high cost, stating there was still a free option, which was having the Texas Department of Public Safety handle all of the testing

Noe also objected to the City paying for the entire cost and not involving the County, which he said also benefits from crime lab services.

District Attorney Jaime Esparza said sending testing to DPS takes longer and the majority of his drug cases come from within the city, while the county shares other costs.

In truth, though, the "free option" isn't really free at all. True, DPS doesn't charge for crime lab services, but they have a very large backlog which can take many months to process a case. In cases where the defendant sits in jail until the results come back, which we might conservatively estimate at $50 per day, assuming they have no medical or mental health problems, pharmacy needs, etc. that boosts the cost significantly more than paying for IFL's crime lab services. Savings in county jail costs alone will likely exceed the cost. Local taxpayers are better off with this arrangement all the way around.

Recently a regional fee for service crime lab run by Sam Houston State in Montgomery County had to close because they unexpectedly lost their lease. The Conroe Courier described the effects of switching from the SHSU lab to the "free" DPS one:

With the loss of the SHSU crime lab – which serves more than 70 agencies – Montgomery County now will have to send tests to a Texas Department of Public Safety Regional Crime Lab in Austin, which serves many more clients, [Assistant District Attorney Warren] Diepraam said.“With the Regional Crime Lab, we got results in a week or two,” he said. “Unfortunately, the DPS lab has a backlog of cases. For drug toxicology tests, it could take six to nine months to get results. That’s a concern to the district attorney that we’ll have people staying in jail while we’re waiting on results.”

And of course, costs for testing at DPS aren't actually "free," they're just kicked down the road to state taxpayers who must pick up the tab. For my part, I think DPS should switch to a fee for service model as well for everybody but its own officers. I live in Austin where taxpayers already finance a crime lab. Why should taxpayers here also pay for El Paso's testing, or the myriad other agencies that use DPS because they're too cheap to pay for their own?

Plus, when agencies think of the service as "free," the services are over-utilized. That's particularly true in DNA cases, where the backlog is worst. Agencies don't treat requests for testing with the same sort of cost-benefit analysis as do agencies which must operate within their own budgets.

At the end of the day, DPS' "free for everybody" model creates false incentives and is IMO unsustainable as demand for crime lab services is growing much faster than the actual crime rate. Switching to a fee for service model would rationalize the process from a budget perspective and stop taxpayers in jurisdictions with their own crime labs from subsidizing the rest of the state. It's probably something the Legislature should consider next session.

Calculating the economic impact of mass deportation

The Center for American Progress, reported the Texas Tribune, has issued a report on a theme Grits has frequently harped on: The economic absurdity of calls for mass deportation of undocumented immigrants. According to the CAP analysis, "if as few as 15 percent of Texans living in the state illegally were removed at once, it would mean an annual $11.7 billion loss for Texas’ gross state product, increasing to more than $77 billion if all 1.65 million estimated illegal immigrants were removed from the state." Further, "The study also estimates that removing the illegal immigrants would result in a loss of about $14.5 billion in annual tax revenue for the state, about 7.6 percent of the total tax revenue."

Thank heavens somebody crunched those numbers. As Grits wrote back in April, "other common words for immigrants, unauthorized or not, are 'customers,' 'employees,' even 'small business owners,' and for the most part the Texas business community, at least, believes we need more of all of those. Imagine the economic impact if tomorrow all the nativists' fantasies were fulfilled and Texas suddenly had 1.6 million fewer consumers." Now we don't have to imagine: The Center for American Progress has calculated it. See an infographic giving more Texas-specific data below the jump.

Assets from scam trooper charity placed in receivership

The Texas Highway Patrol Association - a scam charity bilking donors by supposedly raising funds for the families of state troopers who died in the line of duty - has been basically wiped off the face of the planet in the wake of a settlement with the Texas Attorney General, we learn from a report at Texas Watchdog. Their assets have been placed in receivership and, according to the AG: "Under the settlement, donations that the defendants falsely solicited for the benefit of fallen troopers’ survivors will be distributed to the victims’ families."

I'd like to imagine that this blog played a small role in drawing attention to this scandal. Regular readers may recall that, just more than a year ago, Grits published a post titled "Of buzzards, road kill, charity scams and the Texas Highway Patrol Association," reacting to a solicitation call where the THPA misrepresented themselves as raising money for the "Texas Highway Patrol." That post received quite a bit of attention and led to an excellent investigative feature by the San Antonio Express-News, shining a lot more light on the subject. Then, in December of last year, the Attorney General "charged the defendants with illegally soliciting charitable donations, falsely claiming that donations to the organizations would benefit the survivors of fallen state troopers, and breaching their fiduciary duties as trustees of a charitable organization." (See the final judgment.) According to the AG:

The State’s enforcement action named the THPM, the Texas Highway Patrol Association (THPA), THPA Services, Inc. and several senior officials as defendants. Court documents filed by the State show that the defendants claimed to provide death benefits to slain law officers’ families and fund scholarships for state troopers’ family members. However, state investigators found that few survivors actually received any financial assistance, and many of the purported scholarship funds were awarded to children of THPM’s board members.

After the State filed its enforcement action, the court approved a receiver to take possession of the defendants’ assets and real property. Under the agreement, the defendants’ property will be liquidated and the proceeds will be allocated to surviving family members who never received the $10,000 benefit they were promised. Remaining proceeds will be donated to the Texas Department of Public Safety Foundation and the Department of Public Safety Historical Museum and Research Foundation, which will use these funds to fulfill donors’ original intent. The settlement also imposes civil penalties of more than $2 million.

The settlement also prohibits the individual defendants – Kenneth Lane Denton, Timothy Tierney and Steven Jenkins – from any future involvement with non-profit or for-profit organizations related to law enforcement. Defendant Ruben Villalva Jr. and other former board members were also ordered to comply with similar restrictions.

I'm glad to see this, but there are quite a few other organizations engaged in similar fundraising schemes, though perhaps not all as brazenly as THPA. A common denominator among the groups, though, are phone solicitation programs where the majority of money raised goes into fundraising instead of program-related work. We know that because they're required to register and report their fundraising to the Texas Attorney General.

For instance, a Florida-based group called the American Association of State Troopers (with the dba name of "Texas Trooper Members") raised $3,849,403, spending $3,244,673 on phone solicitation in FY 2010, according to their required filing with the AG. Their phone solicitor is a company called Xentel, Inc...

Similarly, according to group's FY 2010 filing (pdf) with the AG, the Texas State Troopers Association that year raised $3,453,785, spending $2.7 million of that on paying an Irving-based phone solicitor called "Statewide Appeal."

The Texas State Lodge, Fraternal Order of Police in 2010 raised $421,264, spending $328,924 on phone solicitations, according to their 2011 filing, using phone solicitors Southwest Public Relations and a group out of Utah ironically named "Corporation for Character."

In 2009, the Texas Police Chiefs Association raised $399,580 in contributions, paying $290,249 to phone solicitor Xentel and another based in Houston called "Public Safety Services," according to their filing for that year (2010 data isn't available online).

Also in 2009, a group called the "Coalition of Police and Sheriffs" (COPS) based in Katy Texas (see their filing) raised $170,000 in contributions and spent $136,000 on phone solicitors at South-West Public Relations and PJR, Inc..

Each of these strike Grits as spending far too much of their public contributions on fundraising to qualify as legitimate charities. On First Amendment grounds, I doubt it's legally feasible for the Legislature to ban such solicitations. But I find the practice creepy and gross, and I'm glad the AG at least cracked down on THPA, which was perhaps the most flagrant of the lot. As Grits wrote last year, THPA's efforts were "as much about helping troopers as buzzards are about helping roadkill," and they're not the only ones profiteering off the public's understandable sympathy and support for law enforcement.

Austin PD undercover officer allegedly gave material support to 'Occupy' action resulting in felony charges

At Firedoglake, writer Kit O'Connell asks, "Why did undercover Austin Police Department Detective Shannon G. Dowell provide material support for an activist protest that resulted in them being charged with a felony in Houston?"

Sounds like a reasonable question to me.

Last December, wrote O'Connell, "seven activists from Austin, Dallas, and Houston blocked the main entrance into the port by laying in the road and linking arms inside lockboxes (also known as sleeping dragons), which physically linked them together so that police cut them apart. The use of these instruments resulted in these seven being charged with Unlawful Use of a Criminal Instrument or Device, while others who merely linked arms and legs faced lesser misdemeanor charges."

So where did the protesters get these "lockboxes"? An undercover Austin police detective, later identified in court as Shannon G. Dowell but known to the protesters as "Butch," allegedly "obtained the materials, constructed, then delivered the lockboxes to Austin activists before they left for Houston," wrote OConnell. "Funds for the lockboxes came from Occupy Austin’s general funds allocated to the trip by its assembly."

That's classic provocateur behavior. Without the "lockboxes" constructed by the detective, the activists would have only faced misdemeanor charges, but they wouldn't have had that capacity without "Butch's" help. Is it unreasonable to suspect that's why he did it?

Attorney Greg Gladden who's handling the case told O'Connell that "The behavior of Austin Police Department is shocking to my conscience. I believe it is shocking to the conscience of the court. and it is one of the worst ways I can think of for the government to be spending its money, our money. The case needs to be dismissed and the Austin Police Department needs to rethink its role in society."

Notably, local police across the country have partnered with the Department of Homeland Security in undercover operations aimed at "Occupy" protesters, sharing information through so-called "fusion centers."

To be clear, I think intentionally getting oneself arrested in an action like this is dumb as a bag of hair and another example of the Occupy movement's failures of leadership. It furthers no identifiable political goal and forces activist groups to redirect energy and resources from their policy agenda to legal defense. But that doesn't excuse police from using undercover operatives to promote felonious behavior that wouldn't occur without their involvement. It's one thing to use undercover operatives to identify and prosecute crime, but quite another to facilitate and promote it.

MORE: See coverage from the Austin Chronicle and a followup post from Firedoglake, citing testimony from Detective Dowell that he couldn't provide the court with emails related to the undercover operation because they'd been deleted, which if true may violate state record retention laws. Other records related to the case, Dowell told the court, he'd uploaded onto a thumb drive which he claimed to have lost between his hotel in Houston and the courthouse. Judge Joan Campbell was not amused and has threatened to dismiss the charges if Austin PD cannot provide the documents by next week.

McLennan County jail privatization scheme a slow-motion train wreck

In McLennan County, reported the Waco Herald-Tribune ("County okays new DAs post, cuts health care funding," Aug. 15), subsidies to a speculative, extra jail built through a public-private partnership spurred county commissioners to slash indigent healthcare funding to finance their ill-conceived jail-building boondoggle. The article  attributes the costs to "jail overcrowding" but in truth the county has plenty of empty jail beds. However, the county will:

spend at least $3 million next year on outside inmate housing because of jail overcrowding.

The cost of inmate care is a major driver of the proposed tax increase, which would raise the county’s property tax rate by 3 cents, to 49.43 cents per $100 valuation. Commissioners are looking for savings to help offset the cost.

Commissioners Joe Mashek and Kelly Snell on Monday proposed reducing the county’s annual contribution to the Family Health Center, which serves 50,000 low-income patients.

Funding for the health clinic was cut to 1999 levels, the paper reported. "Dropping below that level could jeopardize the center’s grant funding because the federal government wants to see evidence of local support, said Dr. Roland Goertz, the center’s executive director."

Despite aiming to stave off large budget hikes, which are mostly attributed to rising jail costs, commissioners approved a new prosecutor position hoping to move misdemeanor cases more quickly through the process:

Commissioners agreed to add a prosecutor with a maximum salary of $72,000, despite their focus on cutting spending to reduce a proposed 6.5 percent tax rate increase for the fiscal year starting Oct. 1.

District Attorney Abel Reyna sold the position as an effort to streamline case flow.

The prosecutor would be assigned to the office’s intake division, which now has two attorneys and two support staff members who screen felony cases. Reyna asked to add a third attorney to the division to screen and file misdemeanor cases, a job now handled by the office’s misdemeanor trial teams.

To understand what's going on requires some backstory: Long-time readers may recall that the McLennan Commissioners Court partnered with private prison operator Community Education Centers to build a speculative jail which was supposed bring in profit, but when contract inmates never materialized they closed their downtown jail and shifted all the inmates to the contract facility, an arrangement which was extended earlier this summer. The result has been nearly $3 million per year in extra costs, an outcome which was predictable as the sunrise, and in fact predicted on Grits. (See also a local Waco-based blogger recently blasting the arrangement as "corporate welfare.")

Bottom line, the county is slashing the healthcare budget and other county services and still must raise taxes and hire an extra prosecutor to mitigate the commissioners court's flawed decision to partner in a speculative jail building scheme. Grits wrote a couple of years ago that "watching this McLennan County private jail project has been like observing a train wreck in slow motion ... the outcome was so obvious but the engineer just kept plowing forward. " The "engineer," though, is exiting the train. The County Judge and Sheriff who got them into this mess are both retiring this year, just as the chickens are coming home to roost on this financial and managerial debacle. Convenient, that.

Thomas Paine said that time makes more converts than reason, and this episode provides a great example of that truth. It never made sense to build a third jail unit the county didn't need and couldn't afford. That's clear to everyone, now, but the realization came too late to do county taxpayers any good.

Harris probation director resigns in wake of urinalysis errors that put innocents in jail

An outrageous scandal has engulfed the Harris County probation department and forced the ouster of its director.

Harris County probation director Paul Becker tendered his resignation, reported the Houston Chronicle ("Harris County's probation director resigns," August 29) in the wake of a hearing which concluded with State District Judge Denise Collins issuing a moratorium on using urinalysis results from the probation department in her court and calling for Becker and his three deputies to resign.

Moreover, "On Tuesday, the Harris County District Attorney's Office joined the judge in refusing to use any of the division's drug test results in the 36 other criminal courts until further notice because they have questions about the reliability." (Regular readers may recall that the Bexar County DA had to do the same thing back in 2009 when similar allegations arose there.)

KPRC-TV (Aug. 28) summed up the core allegation thusly: "The fallout comes after days of testimony showing a long list of problems, errors and mix-ups in the way the county's probation department tests probationers for illegal drugs. In some cases, positive drug tests were linked to the wrong people. Local 2 Investigates reported last week that at least one probationer went to jail in part because of an erroneous drug test result."

Further, "Probation department leaders admitted they never told prosecutors or even judges about the problems, even when they knew probationers with erroneous tests went to jail."

Judges now say they would have stopped requiring urinalysis in every case if they'd been told the probation department was overhelmed, reported KTRK-TV, though hindsight is always 20/20:

Judge Michael McSpadden says he wishes the Probation Department had told judges they were overwhelmed with the testing

"When you're overwhelmed, what you do is go to the judges is say don't make the requirements in every single case, we are overwhelmed. We never heard that," Judge McSpadden said.

Even with Tuesday's moratorium, the biggest problem for Judge Collins is that there is no way to tell how many probationers were wrongly sent to jail.

"And I don't think we have any idea, and we never will, how many people have been impacted by this. There's no way to measure it," said Judge Collins.

In truth, Grits doubts most Harris County judges would have stopped requiring urinalysis in every case without this kind of scandal to force their hand. Back in 2005, Grits reported based on a consultant's evaluation that Harris County had been told that "Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system." The consultant, Justice Management Institute, specifically recommended that "The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered," but that never happened. So judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem. That's not Mr. Becker's fault.

In some ways I feel sorry for Becker, who was in a damned if you do, damned if you don't situation. Probation departments are underfunded, relying mainly on probationer fees and a relatively small stipend from the state. Plus, in Harris they've been asked to provide urinalysis and supervision not just for people on probation but often for defendants out on bail pretrial. The system has grown so large and unwieldy that, to me, these types of errors are regrettable but unsurprising, not that that does wrongly jailed defendants any good. Mr. Becker may have fallen on his sword, but by no means are he and his staff the only ones to blame.

This episode also reminds us that people who've spent decades in prison on false rape or murder convictions before being freed by DNA aren't the only or even the most common category of innocent defendants jailed based on false accusations. These more workaday, low-level cases have just as much room for mistakes, but are also much more easily swept under the rug. Most defendants are indigent and can't afford to mount the type of full-court press that resulted in Judge Collins' findings this week. It's a great mitzvah that attorney Lisa Andrews did so on behalf of her client, but if defense attorneys in Harris County had been aggressively confronting false forensic evidence against their clients on an ongoing basis, maybe the problems would have been identified and rectified long ago.

RELATED: "Houston probationers did jail time based on faulty drug tests." SEE ALSO: Coverage from the ABA Journal, and a blog post from Paul Kennedy at The Defense Rests titled "Judge calls for heads in drug test fiasco." A Houston radio station quoted an attorney predicting civil litigation from wrongly incarcerated defendants.

AND MORE: The Houston Chronicle's Lisa Falkenberg has an interview with attorney Lisa Andrews.

San Antonio schools to track students with RFIDs in ID cards

As if turning your cell phone into a GPS tracker isn't bad enough, at North Side ISD in San Antonio they're doing the same thing with student ID cards. Via a new-to-me blog called Catfish for Lunch (named, flatteringly, as an homage to this site), I discovered the following notice:

School’s back in session, so we start this week’s roundup with Papers, Please!’s report that the San Antonio Public Schools Plan to Make Students Wear Radio Tracking Beacons.  The school district interested in using these ID chips is calling them Smart Student ID Cards.  If you’re wondering what to think about this, here is EPIC’s Position Paper on the Use of RFID in Schools.

The blog Papers, Please! reported that two NSISD schools have each:

installed an array of “100 or more” RFID readers so that students’ movements can be tracked whenever and wherever they are on school premises. ... To make sure students actually carry their RFID badges, they’ll have to use them for all purchases of school lunches as well as for mandatory attendance checks.

This is not just Big-Brotherish but stupid, as if kids won't readily carry around other students' ID cards so their friends can sneak away. Calling them "Smart Student ID Cards" is outright Orwellian. Just because schools choose to treat students like cattle doesn't mean they're as dumb as the average bovine. The school district says the two campuses in question were chosen for the pilot project because they "have a high rate of truancy and tardiness," but the RFID scheme won't assist at stopping those problems, but merely document them. And in cases where students carry each others' ID cards as a ruse, it may even mask them.

IMO, nobody benefits from this but the vendor.

Texas should ban warrantless GPS tracking

Most folks reading this blog surely own a cell-phone and most of those - certainly all the new "smart phones" - include a GPS locator. So tell me: When you purchased that device, did you intend to give police tacit consent to track your movements without a warrant? A recent federal court decision assumes you did. The Washington Post ran a story last week ("GPS technology finding its way into court," Aug. 23)

The rapid spread of cellphones with GPS technology has allowed police to track suspects with unprecedented precision — even as they commit crimes. But the legal fight is only now heating up, with prosecutors and privacy activists sparring over rules governing the use of powerful new investigative tools.

The U.S. Court of Appeals for the 6th Circuit stirred the debate last week when it supported police use of a drug runner’s cellphone signals to locate him — and more than 1,000 pounds of marijuana — at a Texas rest stop. The court decided that the suspect “did not have a reasonable expectation of privacy” over location data from his cellphone and that police were free to collect it over several days, even without a search warrant.

Here's the opinion (pdf), which came out of the 6th Court of Appeals, not the 5th, which governs Texas, though the GPS tracking happened here. The gist is that GPS tracking of a cell phone is simply gathering information in the public domain akin to physically watching someone walk down the street. Though the US Supreme Court held in US v. Jones that a warrant is needed to place a tracking device on someone's car, the 6th Court of Appeals distinguished GPS in your phone from that case by claiming cell phone users "voluntarily" invite government tracking simply by owning a phone that emits such a signal:

the Government never had physical contact with Skinner’s cell phone; he obtained it, GPS technology and all, and could not object to its presence.

Because authorities tracked a known number that was voluntarily used while traveling on public thoroughfares, Skinner did not have a reasonable expectation of privacy in the GPS data and location of his cell phone.

Even before US v. Jones, Texas law required a court order for police to place a mobile tracking device on your vehicle. But Texas cops could conceivably track the GPS signal from your phone (Fort Worth PD recently purchased such a system) without one, since it's not something police installed but, according to the 6th Court, information you're "voluntarily" giving out in a public space. In light of this ruling, the 83rd Texas Legislature should amend that statute to require judicial oversight for GPS tracking as well.

Revolving door spurs officials to contemplate eliminating felony prostitution enhancement

"Few other states imprison prostitutes as does Texas, which has a long history of locking higher percentages of its lawbreakers in state prisons than all but a few other states," reported Mike Ward at the Austin Statesman last week. "The felony prostitution charge was enacted when the Legislature was still in the throes of its lock-em-up, three-strikes-and-you're-out fervor," he wrote, though Grits would argue that with dozens of new crimes created every legislative session, that fervor has not yet entirely abated. In any event, now legislators and even some prison officials are considering reversing the ill-conceived decision to make prostitution a felony after three misdemeanor convictions. Reported Ward ("Texas rethinks law making repeat prostitution a felony," Aug. 25):

Melissa Farley, a clinical psychologist and recognized national expert on prostitution who heads the San Francisco-based Prostitution Research and Education organization, said Texas is the only state she knows of that makes prostitution a felony. "Jail is simply not the place for these women ... who have other issues," she said. "People look at them as drug addicts who were forced into the sex trade."

Under the 2001 law, prostitutes and their customers can be sent to a state jail for up to two years on a fourth-degree felony — although no customers are currently doing time and probably have not, officials said.

Gradually, philosophies changed and people began questioning whether sending women away to a prison is the best solution. Even some prison officials privately concede the law became just another — more expensive — revolving door. Without specialized treatment, women could cycle through prison several times — much as they do in county jails without programs. ...

State leaders say the program illustrates why prostitutes should never have been sentenced to prison in the first place. It costs $18,538 to house a convict in state prison for a year and about $15,500 in a lower-security state jail, according to Legislative Budget Board calculations. By contrast, a community-based program costs about $4,300 a year.

About 350 women are serving time at TDCJ for prostitution and related charges, said the article. Grits certainly agrees that strong probation programs have a better chance than prison of turning these women's life around - the same is true for many repeat drug offenders in prison as well. But the key as always will be properly funding probation programming, and on that score Grits remains far from sanguine: In the last legislative session Texas reverted to its lock-em-up ways to keep understaffed prison units open at the expense of probation programming.

Still, this is the dynamic - reducing incarceration and shifting part of the savings to strengthen community supervision - which offers the best hope for avoiding a mid-nine figures boost in TDCJ's budget in 2013, so I'm glad to see legislators and prison officials thinking along these lines, even if the scope of this particular proposal remains relatively narrow.

MORE: From the Unfair Park blog. AND MORE: See a related editorial from the Austin Statesman.  

ALSO: A reader emailed to point out that among women's units at TDCJ, "Hilltop and Bridgeport ... both have maximum capacities of fewer than 350." Of those, the reader added, "Bridgeport is a 'pre-parole' facility, so shuttering it may not be feasible for other programmatic reasons, but Hilltop is just a regular prison," so conceivably eliminating the prostitution enhancement could allow the state to close an entire women's prison unit. Just sayin' ...

Austin police say photographers should stay 50-60 feet from arrests

Austin police are "working on guidelines" which would require "people filming the police to stay 50 to 60 feet away," reported the Austin Statesman, after the the second arrest this year of police accountability activist Anthony Bueheler for filming cops while they were arresting someone. In the latest incident, the activist was filming from 15-20 feet away, which seems plenty far enough to avoid any interference. He was arrested because the person being handcuffed and carted away yelled at the photographer to stop filming, allegedly causing an officer to "stumble."

In an email to media received by Grits, and which she posted on her Austin Gonzo blog, Austin police accountability activist Debbie Russell posed a series of important questions, not the least of which is: "If random bystanders are 10' from a detainment, as they often are without ANY concern by LEOs, are they going to be arrested if officers are also planning to arrest a videographer 30' away? If not, why? How is someone holding a camera further away MORE of a danger than someone closer, without a camera (with their hands free)?" Good point.

Russell pointed to a Department of Justice memo (beginning on p. 3 of the pdf) outlining the USDOJ's "position on the basic elements of a constitutionally adequate policy on individuals’ right to record police activity," and the specifics are worth quoting in some detail. DOJ contends that "private individuals have a First Amendment right to record police officers in the public discharge of their duties, and that officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process."

Distracted driving by police an issue, but not as dangerous as high-speed chases

The greatest danger to police officers on the job isn't being shot by a criminal but dying in a car accident, so I was interested to see a  report from KXAN-TV declaring that "nine Austin police officers have been suspended for causing traffic accidents in 2012." Most recently, "An Austin police officer has been suspended for running a red light and causing a crash with another vehicle. It is the fourth time in the last year that an Austin police officer has run a red light and caused a crash."

KHOU-Houston recently reminded us that "Two years ago, an officer in Austin rammed into a motorcyclist in broad daylight. Later he admitted to being distracted," and supplied video of the incident. The officer was typing notes into his on-board laptop when slamming into the cyclist. After that episode, The city changed its policy to require officers using in-car computers to "pull over, complete what they need to do and then proceed," Assistant Chief Sean Mannix has told the press. The Tarrant County Sheriff has enacted a blanket policy against the practice, while the Plano Police Department requires officers to pull over if "extended use" of the in-car computer is expected. But most Texas agencies have left the practice utterly unregulated.

Of course, police running red lights or fiddling with their in-car computer while driving doesn't just endanger the public but the officers themselves. In 2010, Grits reported last year, "Eighteen officers were killed in Texas, more than any other state, and as usual 'fatal traffic incidents ... were the leading cause of officer deaths for the 13th straight year.'" Moreover, USA Today has reported that "At least 42% of police officers killed in vehicle crashes over the past three decades were not wearing seat belts or other safety restraints, according to a federal review."

A July 31 report from the Dallas NBC affiliate found police officers in Texas cause about three crashes per month related to distracted driving:

An NBC 5 investigation has found many Texas police departments don't follow their own advice when it comes to warnings about distracted driving. Crashes involving distractions inside police vehicles now frequently happen across the state.

The list of distractions for continues to grow. In many cities, they're often found operating two-way radios, smartphones, dashboard-mounted computers and on-board cameras while they drive.

A search of state accident reports reveals at least 70 crashes in just 24 months where some kind of distraction inside an emergency vehicle contributed to the wreck -- an average of almost three crashes per month. Those are just the crashes that involved enough property damage or injury that they had to be reported to the state.

In truth, three crashes for month is a fairly low rate compared to the number of accidents police are involved in and the amount of time officers spend on the road, so I'm not sure banning them from such activities is justiified. If Grits had to choose, enacting more regulations on high-speed chases would be a greater priority than disallowing police from texting or talking on the cell phone while driving. The need for communication outweighs the added risk (which IMO is also true for the general public). That said, using a radio, cell phone or even texting behind the wheel is one thing, but putting a laptop in the car takes the distraction to another level. Reading a few words in a text message is a lot different from combing through the amount of information that shows up on a laptop screen, which requires much greater focus. For that, I'd like to see a technical fix instead of a regulatory one: The devices should simply be automatically disabled when the car is moving.

New Dallas 'free walls' for graffiti should expand to underutilized public spaces

The Dallas News reports that the city will begin to establish "free walls" for graffiti artists hoping to divert uninvited graff toward approved spaces ("Dallas will try to reduce graffiti by giving artists 'free walls'," Aug. 22). The story opened thusly:

Daniel “Tony Slowmo” Skelton used to run from cops. Now he runs with them.

Slowmo once flouted the law with his illegal artwork, but is now working with Dallas police to redirect the energies of street artists into legal mural projects. Similar efforts have met with success in Toronto, Phoenix and Venice, Calif.

“The youth really have to choose what path they want to go,” said Slowmo, 35. “We’re just trying to lead by example.”

The details are being ironed out, but the initiative involves establishing “free walls” where artists can legally paint. The city would sponsor competitions among street artists. Those who participate must sign a pledge to paint only in legal areas.

“The days of, ‘Let’s arrest them all and let God sort them out,’ is just not smart on crime,” Police Chief David Brown told Dallas City Council members during a recent meeting of the Public Safety Committee.

“This is an attempt to be smarter on crime.”

Traditional city and police efforts largely focused on arresting vandals and painting over illegal graffiti. You only have to look around to see they have met with limited success.

There are about 60 new reports each week of illegal graffiti in Dallas, and an average of about eight arrests a month. The most common form of graffiti is tagging, “chronic random markings” on walls, buildings, streets signs, overpasses and other property. Only an estimated 5 percent of graffiti in Dallas is estimated to be gang-related.

Grits considers this a step in the right direction, but IMO they city could go even farther. As discussed in 2010, I've "been advocating for quite a while on Grits that government begin to identify blank, under-utilized portions of the city landscape - underpasses, concrete drainage areas, even the backside of street signs - and allow street art there on a permission-based basis. Private property owners who wanted to commission free murals on outward-facing walls as a prophylactic against graffiti could also participate. Ideally, in this writer's opinion, the practice should be widespread, with available 'canvases' across every city and content only limited by obscenity laws and disallowing hate speech and known criminal street gang references."

Photo via the Austin Chronicle

Indeed, five years ago Grits suggested, "as you drive around town over the next few days, start to pay attention to the spots where you most commonly see graffiti and ask yourself, would I object if a quality, youth-drawn mural were allowed here instead? Anywhere you see quickly scrawled graff that you consider a blight could potentially be a spot hosting an invited youth mural. In most cases, as with the support poles along the highways, such illustrations would improve the landscape, not mar it."

The main problem with "free walls" is that usually there aren't enough of them, and sometimes taggers ply their craft in the neighborhoods going to and from the free-wall spots. But expand the concept to include more spots and the strategy IMO has an exponentially greater chance of success.

The strategy would be intended to complement enforcement, not supplant it. But there are limits to how effective an enforcement-only strategy can be. In 2010, just 289 people were prosecuted for graffiti crimes statewide in Texas, with 212 of them getting misdemeanor probation. A lock-em-up approach can't solve the problem by itself, and graffiti cleanup has become a significant expense for many American cities. If free walls and allowing graff in underutilized public spaces could even reduce those costs at the margins, taxpayers would benefit. And if wall-writers can work on their projects without constantly looking over their shoulders and preparing to sprint away, there's a decent chance the overall quality of street art may improve, as well.

Much of the over-hyped rhetoric surrounding graffiti assumes it's mainly performed by criminal street gangs, but according to the Dallas News, just 5% of graffiti in Big D stems from gangbangers. That means most graffiti is likely being performed by young people for whom wall writing (and perhaps a little pot smoking) is the most serious crime they commit. For them, maximum punishment isn't a significant threat because the risk of being caught on any given night is a helluva lot lower than, say, the dangers hanging off the side of a bridge like the one pictured above.

Grits is pulling for Dallas' experiment to succeed, and hopefully expand. IMO it's past time for a more thoughtful approach.

See related Grits posts:

• Toward a restorative graffiti policy
• Graffiti solutions: A cost-benefit analysis
• Texas 'students do without art' but streets still open to graff writers
• Best ever graffiti prophylactic: 'We're going to get this kid a job'
• What exactly is so great about a plain grey wall?
• New Dallas graffiti czar looking past criminal justice approaches
• Kids do less art in school, more in street, Lege reacts with hammer
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Invited graffiti: Solution or enabling for unwanted tags?
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Allowing invited graff best way to reduce unwanted graffiti
• Austin lags on important third component of graffiti policy
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
• Sending a message on graffiti: Two approaches 

Police v cameras in public spaces: A recurring conflict

In Austin, a West Point graduate, Iraq war vet and police accountability activist was arrested for the second time this year for recording police officers in the course of their duties. Reported the Austin Statesman ("Attorney: Man arrested second time for filming police officers," Aug. 27):

A man arrested on New Year’s Day for filming police officers was taken into custody a second time early Sunday, when he was taping officers detain an intoxicated man downtown, his attorney told reporters outside of Travis County Jail.

Antonio Buehler, 35, organizer of the Peaceful Streets Project, is facing a charge for interfering with public duty, his attorney, Joe James Sawyer, said Sunday afternoon. The lawyer said his client was detained about 2:30 a.m. Sunday on Sixth Street.

Austin police officials confirmed officers had arrested Buehler but did not release further information, saying they were reviewing the facts of the case. An official statement is expected to be released Monday. Sawyer called Buehler’s arrest a “deliberate action and part of a calculated effort to protect the officer who arrested him New Year’s Day.”

Buehler, an Army veteran, was arrested at about 1:15 a.m. New Year’s day and charged with harassment of a public servant after he stopped to take photographs of an arrest in Central Austin, according to court records. Police said Buehler interfered with her arrest. He filed a complaint against the arresting officers, who were cleared by an internal affairs investigation in July.

Recording police or anybody else in public should not be an arrestable offense, but some in law enforcement don't agree. In June in Dallas a motorcyclist was arrested essentially for contempt of cop after refusing to hand over video from a helmet cam. After he declined to give up the video, the deputy arrested him for allegedly having an obstructed license plate and the video was seized incident to arrest.

Most larger counties fulfilled Governor's data entry requirement on case dispositions, won't lose grant money

Earlier this year, Grits mentioned that the Governor's Criminal Justice Division would cut off federal grant funds to Texas counties that failed to report at least 90% of their historic arrest and case disposition data to the state system. As of January, 191 of Texas' 254 counties were not in compliance with that standard, by my count, though many of those were fairly close. Now the Austin Statesman reports that all but 27 counties have performed sufficient data input since then to meet the 90% standard. See this list of still-non-compliant counties, compiled by the Statesman, below the jump:

Houston probationers did jail time based on faulty drug test results

Usually when this blog discusses actual innocence cases, we're talking about people wrongfully convicted of extremely serious crimes like rape or murder, typically where DNA evidence provides sufficient proof to overturn a jury verdict. Seldom, though, will the state acknowledge that innocent people are falsely accused on more petty, mundane matters, sometimes based on faulty forensic science or even a mere clerical error.

That's what's happened in Houston where the probation department has sometimes jailed probationers based on faulty or misrecorded results from urinalysis tests. Reported KTRK's Ted Oberg:

On Thursday, the head of the Harris County Probation Department told us he didn't know of anyone sent to jail over a bad drug test. On Friday, one of his own probationers came to court to prove him wrong.

The very problem the Harris Co. Probation Dept. would rather hide and deny walked right into court and swore to tell the truth.

"I wish I could have said more to that probation officer," said Richard Youst.

Youst was on probation for DWI when a judge put him in jail for 10 days after a supposed positive drug test for cocaine. It was a bad test result, but before attorneys figured it out, Youst lost his driver's license, his apartment and his job.

"Our practice is to act on it as soon as we know that there is an error," said Ray Garcia with Harris Co. Community Supervision.

Probation officers have known for a month, but never owned up to it.

"Nobody has contacted me from that probation office," said Youst.

A freelance Houston airline executive had the same problem. He didn't want to be identified, but he spent 16 hours in jail after a false test for marijuana. He lost two days of work including a huge presentation and lost his chance at a promotion.

"They knew about what had happened to other people and they did not fix it," said defense attorney Lisa Andrews.

Every drug test at the Harris Co. Probation Dept. gets an ID number. They're supposed to be scanned electronically, but according to testimony they often have to be entered into the computer by hand. There's no other ID that goes with it. So if the data entry is even one digit off, an innocent probationer gets hit with someone else's positive drug test result.

"They need to get their stuff straight," said Youst.

From inside the department Friday, Donald Martin, a 22-year probation employee, told Judge Denise Collins she may not be able to trust any Harris County drug test results. Martin testified, "The chain of custody has so many holes, I don't know if you can say any of the positives are truly positive." 

See additional coverage from Oberg and the Houston Chronicle. According to the Chronicle:

A supervisor who testified Friday said finding 3-month-old urine samples in the back of the division's unlocked refrigerators was not uncommon.

The old samples would simply be sent out as though it had been collected that day, said Donald Martin, a supervisor at the department.

As part of the court-mandated "chain of custody" that ensures the integrity of evidence, law enforcement has to show that an appropriate custodian has kept evidence from being tampered with before it can be admitted in court.

"When it comes to chain of custody," Martin testified, "there are more holes than Swiss cheese."

Doesn't inspire confidence, does it?

Upcoming criminal justice-related budget hearings

For those interesting, there are several notable budget hearings at the capitol in Austin related to Texas criminal justice agencies in the coming weeks. Here's a list of those scheduled so far that caught Grits' attention:

TDCJ ignores Governor's budget cut request, asks for $300 million appropriations bump

Though Grits argued earlier this week that pay hikes for Texas prison guards are extremely unlikely in the 83rd legislative session next year, despite chronic understaffing, apparently hope springs eternal among the lock-em-up crowd. Mike Ward at the Austin Statesman reported on Friday that, despite agencies being asked to submit a legislative appropriations request (LAR) 10% lower than their current budget, the Texas Department of Criminal Justice is asking for $300 million more than its current budget, mostly for increased pay for front-line prison staff, particularly COs. More than 10% of prison guard slots are presently unfilled, Ward noted, with the problem particularly critical at seven rural units where turnover is astronomical.

In addition to pay hikes, "The agency is also asking for an additional $17.5 million to build dorm-style staff housing for correctional officers at the seven short-staffed prisons. That project is on a 'wish list' of items prison officials would like to have, if the Legislature has extra money to spend — which appears unlikely," Ward reported, adding that:

As part of its budget request, the prison system included more than $1 billion in funding for prisoner health care — an amount that will probably be too small.

On the "wish list" is a request for another $141 million, which officials said health care providers believe "is critical to maintain operations and ensure effective overall quality care within the system."

Prison guards probably deserve more pay, but even if it happens it won't make the positions competitive with the oil field jobs presently drawing away rural workers. Ward wrote that "Prison guards in Texas are paid between $27,000 and $37,000. Guards are leaving for oil field jobs that pay $70,000 to $80,000," so a small raise in any event won't make the positions competitive.

More concerning than that cognitive dissonance, just like last session, TDCJ officials are falsely framing the debate. While they're hyper-focused, as always, on maxxing out funds for the prison system, the agency doesn't appear to be asking (judging from this report; we'll know more next week when they publish the LAR) for increased funds for probation and parole, evincing priorities that IMO set the agency up to fail. The more rational solution to the understaffing dilemma at rural units would be to divert low-level drug and property offenders from prison through community supervision (since supervision on probation costs a fraction of incarcerating the same offender) so the state can close more prison units.

The problem here is that prison officials a) see themselves as prison operators instead of seeking to maximize public safety at sustainable costs, and b) aren't willing to speak truth to power. If just seven units are suffering grave understaffing, are raises really justified at all those where turnover isn't a problem? The smarter approach would be to shift money to strengthen probation and change sentencing policies to allow the agency to close understaffed units and/or its most expensive ones. That would not only reduce staffing pressures (with such high turnover rates, few actual layoffs would be necessary), but also lower medical costs from serving fewer prisoners. Instead, TDCJ officials are asking the Lege for a major budget bump, even though nobody thinks doing so would make prison guard pay competitive with the oil field jobs drawing away workers.

Unfortunately, the agency itself will likely never suggest the sorts of policy changes needed to actually moderate TDCJ's budget. They're counting on the historic alliance of Big Government Conservatives and Liberals to reflexively throw more money at prisons, as the Lege has done since the Ann Richards era. IMO, agency leaders don't really care about community supervision and even less about reducing burdens on taxpayers: Their personal identities are as prison managers and if history (and this report) are any guide, they'll seemingly always seek to fund brick and mortar prisons over probation and parole, regardless of the budget or public safety implications. If legislators want a smaller, rational, God forbid, conservative prison budget, they cannot look to TDCJ for suggestions on how to accomplish it.

Private prison roundup: Investors betting on immigration detention boom continuing

I wanted to point out a few items related to private prisons that came out while Grits was on holiday. First, the media seems to have finally caught on to a trend this blog prophesied six years ago in a post titled "The Coming Immigration Detention Boom." See:

• Reuters: Immigrants are cash cows for private prisons
• Pittsburgh Post Gazette: Immigration detainees drive private prison growth
• Huffington Post: Private prison companies making big money off detaining immigrants

As is usually the case when it comes to law enforcement and prison pork, this trend is a bipartisan one, supported as much or more by the Obama Administration as his Republican predecessor.

Via the blog Texas Prison Bidness, we find coverage of efforts by advocates to combat the unholy alliance of xenophobia and corporate welfare in an item titled, "Groups working to Fight Private Prison Expansion and Immigrant Detention Host Webinar."

Here in Texas, the GEO Group's bid to operate a forensic mental hospital (in fact, they were the only bidder) has drawn criticsm; see: 

• Texas Prison Bidness: GEO group faces opposition in bid to run state hospital
• Texas Tribune: Advocacy groups don't want GEO to run state hospital

See related Grits coverage of the project here, here and here.

This business reporter from the Palm Beach Post commented on the growth in private prison revenues at the two largest players in the market: The GEO Group and Corrections Corporation of America, noting the recent dropoff in GEO stock despite rising revenues:

GEO Group’s revenue — which has risen every year for nearly 20 years — and steady profits make it a financial success story. It’s the second-largest operator of private prisons, trailing only Corrections Corp. of America (NYSE: CXW) of Nashville.

But investors clearly prefer CCA. While GEO Group’s revenue is similar to CCA’s, CCA is twice as profitable, and CCA’s market capitalization is twice GEO Group’s. A $10,000 investment five years ago in GEO Group would have dwindled to $8,667, while the same amount invested in CCA would have grown to $13,237.

The writer attributes the difference to scandals and lawsuits involving the GEO Group, which is certainly part of it, but Grits believes the underlying reason for the stock differences arises from more pedestrian sources. Both companies are overloaded with too much debt, but GEO's debt to equity ratio is higher and CCA enjoys greater value from real estate holdings from facilities it owns, whereas the GEO Group typically manages state-owned facilities instead of owning the units themselves. The current earnings boom is tenuous and could evaporate quickly if Congress ever gets around to passing comprehensive immigration reform. But real estate holdings could be spun off in that event, making CCA more valuable from an investor's perspective. Grits would like to think investors would devalue publicly traded private prison stocks because of human rights abuses, but in my heart of hearts, I doubt it.

MORE: A commenter pointed out this interesting exposition from Crooks and Liars of CCA's real estate holdings as they relate to Bain Capital and presidential candidate Mitt Romney. Whatever your partisan leanings, the detail on CCA's real estate investments (and methods for concealing property-related wealth from taxation) provide greater detail and insight into why the company has retained greater value than GEO.

Latest DNA exoneration based on flawed eyewitness ID from 1989

Via AP, here are details ofthe latest Texas DNA exoneration out of Fort Worth of a fellow convicted based on faulty eyewitness identification:

A man who spent more than two decades behind bars was freed Friday after DNA evidence cleared him in the rape of a 14-year-old Fort Worth girl.

David Lee Wiggins was convicted and sentenced to life in prison in 1989, although neither of the two fingerprints found at the scene matched his. The girl, whose face was covered during most of the attack, picked Wiggins out of a photo lineup and then a live lineup, saying he looked familiar.

But DNA testing earlier this month excluded Wiggins as the person who committed the crime. Tarrant County prosecutors said DNA evidence demonstrated his innocence.

State District Judge Louis Sturns in Fort Worth freed Wiggins on a personal bond after approving a motion to overturn his conviction. Before the crime is officially cleared from his record, the Texas Court of Criminal Appeals must accept the judge's recommendation or the governor must grant a pardon. Either step is considered a formality after the judge's ruling.

"I hold no bitterness," Wiggins said in court after the judge's ruling. "I'm thankful to Jesus Christ. He said he could move mountains, and surely this was a mountain. ... And to the victim: I'm not mad at you. I don't hold you responsible."

The packed courtroom then erupted into applause and people rose to their feet. Wiggins later hugged his relatives and some other men who have been freed from prison after DNA evidence exonerated them in recent years. About a dozen of them attended the court hearing to support Wiggins.

"We draw strength from each other," said Charles Chatman, who was freed in 2008 after serving nearly 27 years for a rape he did not commit. "We're the only people who know what we are going through."

Grits offers hearty and heart-felt congratulations to Wiggins and his attorneys. See a related editorial from the Fort Worth Star-Telegram and coverage from the Texas Monthly Daily Post blog.

State fire marshal interview highlights review of arson cases

Following up on a story first reported on Grits last month, the Texas Tribune while I was out of town published an interview with the new state fire marshal, Chris Connealy, describing his enthusiastic embrace of recommendations by the Forensic Science Commission for revamping arson investigations, and the agency's collaboration with my employers at the Innocence Project of Texas to review old arson cases to look for wrongful convictions based on faulty science. Good stuff. I'm enthusiastic about Connealy's new position, not only because he seems personally committed to improving arson investigations, but because it may signal that the Governor, who appointed him, may be willing to back away from some of the extremist, anti-science demagoguery that at times characterized the unhappy debates surrounding the Todd Willingham case.