Banks, businesses central to money laundering but mostly ignored by Texas law enforcement

After British banking giant HSBC was called on the carpet by Congress for alleged money laundering this summer, two American banks which received among the largest bailouts from the federal government back in 2008 - Bank of America and J.P. Morgan - are under investigation regarding similar allegations, reported the New York Times on Friday:

The surge in investigations, compliance experts say, is coming now because authorities were previously inundated with problems stemming from the 2008 financial turmoil. “These issues may have been put on hold during the financial crisis, and now regulators can go back to focus on money-laundering and other compliance problems,” said Alma M. Angotti, a director at Navigant, a consulting firm that advises banks on complying with anti-money-laundering rules. 

Until now, investigators have primarily focused on financial transactions at European banks, most recently Standard Chartered. The authorities accused several foreign banks of flouting American law by transferring billions of dollars on behalf of sanctioned nations. 

As the investigation shifts to American shores, the Justice Department and the Manhattan district attorney’s office are moving beyond those violations to focus on money-laundering, in which criminals around the globe try to hide illicit funds in United States bank accounts. If these new cases follow the pattern of previous ones, prosecutors could follow up on regulatory actions with their own complaints.

Readers may recall that another bailout recipient, Wells Fargo (through their now-defunct subsidiary Wachovia), was alleged along with Bank of America as having been involved in laundering money for Mexican drug cartels back in 2010. Another banking giant which received an enormous bailout in 2008, Citigroup, earlier this year was also cited for lax oversight in this area, reported the Times:

In April, the regulator issued a cease-and-desist order against Citigroup for gaps in its oversight of cash transactions. The order cited “internal control weaknesses including the incomplete identification of high-risk customers in multiple areas of the bank.” A person close to the bank attributed part of the problem to an accident when a computer was unplugged from anti-money-laundering systems.

Citi did not admit or deny wrongdoing, but said in April that it had already undertaken many of the reforms required.

So now the four US banks which received the largest federal bailouts - $25 billion each for Wells Fargo,  J.P. Morgan, and Citigroup, and $15 billion for Bank of America - have all been implicated in alleged money laundering activities.

Indeed, one of the reasons such investigations were likely "put on hold" during the 2008 banking crisis, as the Times put it, is that, according to the United Nations Office on Drugs and Crime, during that period laundered drug money was one of the few remaining sources of liquidity for global banks. Reported the UK Guardian in 2009, "Antonio Maria Costa, head of the UN Office on Drugs and Crime, said he has seen evidence that the proceeds of organised crime were 'the only liquid investment capital' available to some banks on the brink of collapse last year. He said that a majority of the $352bn (£216bn) of drugs profits was absorbed into the economic system as a result."

Back in April, the Texas Senate Criminal Justice Committee held a hearing on money laundering, which Grits finally listened to online yesterday after reading these latest news stories. But if one were to judge from law enforcement testimony at that hearing, you'd never think banks were remotely involved in the practice. Instead, their focus was almost exclusively on bulk smuggling of cash, which DPS Col. Steve McCraw claimed is the number one technique of the six major cartels operating in Texas for repatriating funds to Mexico. However, even from testimony provided at that hearing, to this writer it didn't seem credible that that's the main method. After all, the cartels need to exchange bulk cash for Mexican pesos (usually), and for that it needs to be laundered.

While DPS focuses mainly on seizures by troopers, said McCraw, David Maxwell, deputy director of law enforcement at the Attorney General's office and a former Texas Ranger, told the committee their office has just 11 investigators who "concentrate on the financial end of it," but "that is miniscule compared to the overall scope of the problem," which he called "just amazing." Huge sums of money he said, are siphoned through front companies, citing one investigation alone where more than 100 corporations linked back to a cartel.

Maxwell said the main trigger for financial investigations are "SARs," or Suspicious Activity Reports. There were 70-90,000 SARs in Texas last year, he said, and out of those approximately 130 people were prosecuted statewide. In addition, he said, businesses must report on IRS form 8300 if they take in cash $10,000 or greater, but he admitted that nobody seriously investigated cash deposits below that threshold.

State Sen. Juan "Chuy" Hinojosa questioned Maxwell whether that omission left out a wide swath of money laundering activity: "I see businesses, for example, in the Valley that we know they are not making a profit but they take in a lot of cash and then they report it and pay their taxes or whatever." (Viewers of the hit TV show Breaking Bad will recognize this model from Walter White's car wash.) Maxwell said that unless deposits exceed $10,000, or someone reports the illicit activity of their own volition, those types of transactions are seldom prosecuted.

Indeed, all the suggestions offered for improving anti-money laundering enforcement at the Texas hearing in April focused on the lowest folks on the cartel totem pole - so-called "mules" carrying bulk cash, often for as little as a 1% fee. Justin Wood of the Harris County District Attorney's office said that most cases they prosecute involve small-time mules at airports or bus stations. Practically speaking, he said, when someone is detained with large sums of cash, they are questioned and hopefully they admit it. Otherwise, in many cases, without an admission, their "hands are tied." Often mules are chosen because they have no history of drug involvement. And even if drug dog alerts on the cash, he said, there's research that says there is drug residue on much of the money in your wallet. Law enforcement can still seize the money, he said, but often can't prosecute without an overt admission.

His solution: Reduce the level of mens rea - or criminal intent - that prosecutors are required to prove in bulk seizure cases. Wood wanted to change the "intent element" in such cases to include a "duty to inquire." State Sen. Glenn Hegar asked what good it would do to prosecute mules, who Wood admitted are typically extremely poor and very "low on the totem pole." Even if such individuals had a duty to inquire, said Hegar, they likely wouldn't be cognizant of it. "You're probably right," Wood replied.

Houston PD narcotics detective Martin Skeen granted that his department focused mainly on bulk cash instead of commercial money laundering, but considered it justified because "We not only fund our own initiatives, we actually make a profit." For every dollar spent on interdiction activities, he said, they seize $2-3. However, he admitted, the people they deal with are typically lowest link in the food chain, often smuggling $50K in cash for just $500, he said.

Over the years, I've come to view this focus by law enforcement on bulk cash smuggling as all but willfully ignoring the larger problem, which of necessity given the vast sums involved must implicate multinational banks and businesses. Impoverished mules, who as Sen. Whitmire noted can be "replaced overnight," make relatively easy targets compared to bankers with a cavalcade of attorneys at their beck and call. And as Skeen noted, focusing on such low hanging fruit generates "profit" whereas marshaling resources to go after well-heeled banks and businesses has a higher cost-benefit ratio for law enforcement from a funding perspective.

Also, just as with the banks during the financial crisis, focusing on money laundering at businesses would risk harming the state economy, whereas seizing bulk cash transfers has fewer domestic economic implications. If a cartel front company buys a crate of tomatoes in the Rio Grande Valley, for example (or really, any commodity), and resells them in Mexico, that generates income for Texas businesses, taxes for the government, etc.. I've often wondered if the failure to more aggressively pursue such activities doesn't stem mainly from a desire not to kill the goose laying golden eggs.

Harris County jail population reductions may be short-lived if judges, new DA don't act responsibly

It wasn't long ago that the Harris County Jail - the largest in Texas and one of the largest in the country - was bursting at the seams and county commissioners were seeking voter approval to issue more debt to expand the facility. "There is no question that we need more jail cells," County Judge Ed Emmett told the Houston Chronicle after voters rejected jail expansion in 2007, yet that turned out to be flat-out wrong.

Harris County has successfully reduced its jail population in the last couple of years to the point where they no longer must ship inmates to jails in Louisiana and other Texas counties due to overcrowding. And despite Chicken-Little pronouncements from the police union and tuff-on-crime zealots, the sky didn't fall and in fact crime continued to decline in Houston. As of August 1, the jail was at 86% capacity, with zero inmates housed in other counties, and there's little question that those numbers could decline even more through relatively minor policy tweaks. But that would require the cooperation of judges and the district attorney's office, and there are few signs at  the moment that those public officials will act in the taxpayers' interest to further reduce jail costs.

The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney's office: The cessation of charging people caught with drug paraphernalia with felonies based on trace amounts, and the creation of the DIVERT program for DWI defendants, which reduced the long-time trend of offenders choosing jail over probation for low-level DWI offenses. Unfortunately, the incoming District Attorney has pledged to reverse both those policies, meaning we can expect the Harris jail population to climb upwards beginning next year. Soon thereafter, the inevitable calls to build more jail space will resume in earnest, with more Chicken Littles telling us the sky will fall if more people aren't locked up for longer periods.

It doesn't have to be that way, and besides the DA, local judges are primarily responsible for excessive incarceration in H-Town. Last weekend, the Houston Chronicle ran an important story implicating jail populations ("Judges leery of no-cost personal bonds," Sept. 9) that merits Grits readers' attention. The story focused on a familiar theme to long-time Grits readers: the failure of Harris County judges to utilize personal bonds, requiring bail in most cases regardless of risk assessments from the county's Pretrial Services division. The story by James Pinkerton opened:

Whether the charge is robbery, shoplifting or drug use, most people arrested in Harris County stay in jail because they can't afford to post bail.

That's largely because this conservative county and its judges have been reluctant to grant no-cost personal bonds that are increasingly popular in other large metropolitan areas in Texas, say attorneys, judges and those in the bail bond industry.

"There's no good reason for it,'' said Mark Hochglaube, the trial division chief of the Harris County Public Defenders Office. "I can't speak for what they do in other counties, but I can tell you the general sense of the culture here is one that is opposed to pretrial release. I wish it weren't, but it's as basic as that."

Last year, just 5.2 percent of slightly more than 94,000 people arrested by Harris County police agencies got out of jail on no-cost personal recognizance bonds, according to a report by the Harris County Pretrial Services office.

In July, 65 percent of the county's 9,133 inmates were pretrial detainees rather than convicted criminals serving sentences, according to the Office of Criminal Justice Coordination.

If judges granted personal bonds based on risk assessments, the jail population would quickly drop:

Last year the pretrial office screened about 80,000 defendants, and [Pretrial Services Chief Carol] Oeller said her officers recommended that 25 percent of those arrested on felony charges and 40 percent of misdemeanor defendants be granted a PR bond.

However, judges granted a little more than 1 percent of the felony requests and 7.4 percent of the misdemeanors, or a combined 5.2 percent.

"I think sometimes the charge is given more weight than our risk assessment," said Oeller.

In Travis County, by contrast, judges approved personal bonds for more than 19,000 defendants, or "61 percent of those who were eligible."

The federal courts abolished bail in criminal cases long ago, as have several US states. Indeed, the United States is an outlier on this question: Besides here, only the Philippines still relies on commercial bail bonds, which have been abandoned everywhere else on the planet. Here, though, bail bondsmen are often politically influential locally, on the short list of campaign contributors in judicial and other criminal-justice related races.

Mark Hochglaube, the trial chief for the new Harris County public defenders office told the Chronicle that "bond practices in Harris County force some innocent defendants to plead guilty because they'd rather accept a plea deal and a short sentence than spend months in jail waiting for a trial. In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received."

It's not just felony cases, though. According to the Pretrial Services division's annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail last year. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn't make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed. (That happens more quickly in Harris than some other jurisdictions because of the DA's direct filing system, but as defense attorney Paul Kennedy noted, it still results in a system designed to maximize pressure on defendants to accept a plea deal.)

These numbers demonstrate why, as corrections expert Tony Fabelo has noted, expanded pretrial detention has been the main driver of increased jail populations since the turn of the century. By his calculations, while statewide jail populations increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. In that sense, Harris County's situation isn't unique except for its massive scope and outsized costs.

Though only judges can approve personal bonds, Mark Hochglaube told the Chronicle, often in Harris County the defense bar doesn't even ask for them. "It's not just a failure of the judges, the district attorney - it's everybody. It's a failure of the defense bar. Even good attorneys don't ask for a personal bond. Everyone is indoctrinated with the idea that if you are charged with a felony you're not going to get a PR bond," he told the Chronicle.

If the incoming DA follows through on his promise to charge trace paraphernalia cases as felonies - a move that would not just clog the jail but boost felony court dockets and crime-lab backlogs - local defense attorneys and judges will need to overcome that "indoctrination," or else the county will soon be shipping pretrial detainees to Louisiana again. These are soluble problems, but the solutions begin with more fiscally responsible decision making by local elected officials.

Texas Congressman pushing restrictions on law enforcement's use of drones without warrant

A Texas Congressman has introduced legislation to restrict the use of aerial drones by federal law enforcement without a warrant. Here's a description of the legislation from a recent report (pdf) by the Congressional Research Service:

Representative Ted Poe’s Preserving American Privacy Act of 2012 (H.R. 6199) would restrict the domestic use of drones. It would only permit use of drones by law enforcement pursuant to a warrant and in the investigation of a felony. Any search would be subject to the\ same limitations and exceptions as apply in the jurisdiction where the search is conducted. There is an express exclusionary provision so that evidence obtained in violation of the act would be inadmissible in a federal criminal prosecution. Such evidence would also be excluded from administrative hearings. Additionally, no federal agency may permit a private entity from [sic] monitoring an individual. The bill has an exception for searches conducted within 25 miles of the national border.

Bully for Congressman Poe! The bill has 25 cosponsors in the House including four other GOP Texas congressmen: Michael Burgess, John Culberson, Louie Gohmert, and Francisco 'Quico' Canseco. Acording to the CRS report:

Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years. Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015. However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use.

The bill (see the text) would prohibit the FAA from approving drone use by law enforcement "including by any State or local government, except pursuant to warrant and in the investigation of a felony." The bill would also prohibit drone use by "any private person to conduct surveillance on any other private person without the consent of that other private person or the owner of any real property on which that other private person is present."

Grits sees no reason why this should be a partisan issue and hopes many more in Congress sign on. We've already seen state and local law enforcement agencies entering the drone market, so if the federal legislation doesn't pass, the Texas Legislature should follow Rep. Poe's lead and require warrants for use of drones by Texas state and local law enforcement and prohibit their use for surveillance by private individuals.

H/T: Fierce Homeland Security.

MORE: From Digital Trends, see: "Drones: 13 things you need to know from Congress' new report."

Appellate court upholds ruling in favor of TYC whistleblower alleging misconduct at parole revocation hearings

Reported the Dallas News ("Appeals court upholds a Dallas attorneys award for blowing whistle on state judges," Sept 12), "An appellate court has upheld a judgment now totaling about $1 million awarded to Dallas attorney Chris Koustoubardis after he was fired for blowing the whistle on fellow judges at the Texas Youth Commission four years ago."

Go here for the best account available of the allegations upheld by the appellate court in affirming the jury verdict, which involved supervisors pressuring judges regarding their rulings in parole revocation hearings and an administrative judge coaching a police-officer witness in order to get inadmissible hearsay testimony admitted as an "excited utterance."

The former administrative law judge told the Dallas News "he doesn’t regret speaking up but didn’t realize it would cost so much," adding, “You know ... it doesn’t pay to do the right thing.” He's not the first at TYC/TJJD to think so, but in this case, if the appellate ruling stands, perhaps for once, this time it will.

New criminal penalties wrong solution for TJJD pay hikes

In reaction to controversial raises for administrators at the Texas Juvenile Justice Department, reported Mike Ward at the Austin Statesman: "'We need to put in a criminal penalty for violating the Appropriations Act and not following the intent of the Legislature,' said Senate Criminal Justice Committee Chairman John Whitmire, a Houston Democrat who is also a member of the budget-writing Senate Finance Committee."

Really? More criminal penalties are the answer? I'll ask again: Why are increased criminal penalties seemingly the only solution the Lege can imagine to every problem that crops up? Making the suggestion more problematic, we learn deep in the article that the agency appears to have gotten around the legislative limits without actually "violating the Appropriations Act":

privately, other officials familiar with the budget laws said one problem with enforcing the pay-raise ban is how it was written.

The budget law contains a so-called rider that prohibits the juvenile-justice agency from giving raises to eight top officials above their base rate of pay on Aug. 31, 2010.

The term "base rate" is not defined. And several of the officials said that several officials who got raises had their job titles changed, which also got around the rider.

The Legislature has plenty of ways to punish agencies that flout their budgetary wishes. They've already run the executive director who authorized the raises out on a rail. And ironically, the new E.D. is using the same method to rescind raises which was adopted by his predecessor to allow them: Reported Ward, "no one lost their jobs in Thursday's reorganization, but some reassignments came with pay cuts for several former top officials."

As Grits has written before, "If the only tool you own is a hammer, everything looks like a nail, the saying goes. And thus for too long a bipartisan tool shortage has encouraged reformers of all stripes, and from all points on the political spectrum, to reach first for solutions involving police, courts, fines and punishments instead of other less coercive strategies." Certainly new criminal statutes weren't necessary to resolve this situation.

Whether or not one thinks the raises were inappropriate, it's over now and time to focus on more pressing concerns.

Texas Juvenile Justice Department may eliminate 20% of executive staff

The new head of the Texas Juvenile Justice Department (TJJD), Mike Griffiths, plans to shake up agency management, the Austin Statesman's Mike Ward reported today, reducing the number of top supervisory staff by as much as 20%, and has handed out writing assignments to agency leaders asking how they hope to fit in with thenew management stucture and soliciting suggestions for improving the agency. Reported Ward ("Juvenile agency plans to rescind pay raises, reduce management ranks," Sept. 11):

Griffiths said he will make public his new organization chart for the agency that runs Texas' youth corrections programs, perhaps as soon as today. And he said he plans to quickly begin filling the jobs.

As for the raises, Griffiths was clear: "I'm going to make sure the salaries at this agency are in line with legislative directives."

Griffiths briefed the agency's Austin headquarters staff on those details during an afternoon staff meeting on Tuesday, and top managers were given a two-page form to select their "preferred leadership roles" in the remade agency.

The form listed 16 jobs. Agency officials said about two dozen executive-level officials were asked to complete the novel, at least for state government, writing assignment.

On the form, they were asked to list the two leadership roles they would like to fill. They were then asked to list the top three action steps to take those jobs or divisions "to the next higher level of achievement."

Griffiths provided a copy of the form to the American-Statesman, unusual for an agency that has spent much of the past five years withholding details of its problems from the media and lawmakers.

"We are going to be transparent as we move forward," Griffiths pledged.

"I've got thick skin. I'm hardheaded, and I will work just as hard as anyone can to turn this agency around."

Griffiths is touring the agency's lockups and briefed legislative leaders on details of the shakeup.

Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, said he believes Griffiths plans to cut perhaps as much as 20 percent of the senior staff as part of his reorganization.

Griffiths said the details of his plan will emerge clearly in coming days.

Two dozen managers seeking 16 jobs would mean cutting even more than 20% of executive staff if things really turn out that way. (Two more have already been let go.) Grits is looking forward to acquiring copies of those manager "writing assignments" once they're completed. They should make for interesting reading.

N.b.: Commenters should accept Griffiths challenge to "list the top three action steps to take [the agency] 'to the next higher level of achievement.'" Please don't turn this comment string into a series of screeds about who should be fired. That's Griffiths' call, not yours, and the sort of prattle that tends to accompany such suggestions quickly becomes counterproductive.

O. Henry pardon application submitted as postal service issues eponymous stamp

USPS: O. Henry (Forever)

Today is William S. Porter's 150th birthday, though readers' more likely know the man by his nom de plume: O. Henry. The US Postal Service is issuing a stamp in the writer's honor. To celebrate, Grits has partnered with Prof. P.S. Ruckman at the Pardon Power blog (see his latest post on the topic) to submit an application for a presidential pardon on O. Henry's behalf to the Office of the Pardon Attorney at the Department of Justice, with a copy also submitted directly to President Obama. Porter/O. Henry was convicted of bank fraud in Austin in the old federal court building that now houses the UT-System offices, which has since been renamed O. Henry Hall. But quite a few biographers and historians - not to mention the prosecutor in his case, Duval West, who went on to become a federal judge in Texas' Western District - came to doubt his guilt in the years following his death.

Whether or not he was actually innocent, though (the application takes no firm position on the subject), there's little doubt that the writer left federal prison not just rehabilitated but prepared to make an enduring contribution to American literature and culture. Even if he never received presidential forgiveness, the American public forgave and embraced him. Porter's pseudonym to this day graces an Austin middle school as well as the nation's most prestigious short story prize. Indeed, a school was named for the writer in Llano, TX just two years after his release from prison! There are elementary schools named after O. Henry in Garland, TX and Greenville, North Carolina, and even a middle school in New York City.

The pardon petition idea first bubbled to the surface after President Obama quoted the great writer last year while pardoning a pair of Thanksgiving turkeys in an annual ritual that IMO makes a mockery of  executive clemency powers. The Constitution's framers considered a pivotal check and balance to excesses of the criminal justice system. In Federalist Paper #74, Alexander Hamilton wrote that, "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." In modern times, though, executive clemency, especially at the federal level, has itself become a cruel joke to those who seek it.

Prof. Ruckman was the primary drafter of the pardon application and Grits appreciates his hard work on this project more than I can say. So partially in appreciation, and partially because he framed the argument so well, I'll close with a quote from the section of the pardon application articulating the reasons why the President should honor this great American writer with posthumous clemency:

the conventional view of pardons (state and federal) is all too often deeply infected with a kind of cynicism that is based in ignorance. This cynicism is directed at both those wielding the power of clemency and those who benefit from it. In this view, politicians use pardons to benefit personal friends, family members, large donors and fellow partisans. Anyone outside of the ranks is assumed to be a violent criminal, being tossed into the streets to terrorize society once again. In this view, acts of clemency are seen as “gifts” (fittingly distributed around Christmastime), “gifts” which may (or may not) be deserved. Sadly, members of the media do little to better inform, or discourage, this conventional wisdom.

Of course, students of the pardon power (state and federal) know that the typical clemency recipient does not spring anyone from prison. The typical recipient has already served his/her  time – if there ever was any to be served. The offenses addressed are usually minor / non-violent and the recipient has, over a considerable period of time, integrated back into society as a law-abiding and productive member.

In sum, the typical pardon (which usually has the effect of merely restoring rights) is not a “gift” at all. It is earned and deserved. Executives are thus not “doing favors.” They are fulfilling their constitutional duty to make sure laws are not “too sanguinary and cruel” and that – where deserved - there is “easy access” to mercy.

The posthumous pardon of William Porter can be the very first to make this critical point, educating the American public - like no other - as to the original purposes and actual usage of the pardon power. It can be a much-needed giant step toward realigning the conventional wisdom with reality. The American public needs to understand the relationship between the rehabilitative function and the pardon power and Porter’s case is the perfect vehicle. School teachers across America could discuss rehabilitation and pardon as their students read The Gift of the Magi or the Ransom of Red-Chief. In an environment where the value of clemency is understood and appreciated, presidents and DOJ officials can exercise the pardon power more generously, and more effectively, as they should. O. Henry is considered a master of “surprise endings” and his life-story deserves a better ending. 

Go here to sign a petition in support of O. Henry's pardon application. Here's a copy of the application itself and attachments articulating an account of the offense and reasons for granting the pardon, as well as a summary brief submitted separately to the President.

See past posts from Prof. Ruckman's Pardon Power blog on O. Henry:

• O. Henry application: A worthy exception
• O. Henry: The early years
• O. Henry: Trial and conviction
• O.Henry: Prisoner No. 30664
• O. Henry: The American writer
• Pardon for O. Henry: Prelude
• Obama quotes fugitive, felon while pardoning turkey!

Here are several past, related Grits posts:

• Might O. Henry deserve a posthumous pardon for actual innocence?
• Why O. Henry: Would pushing Jack Johnson pardon have more 'symbolic heft'? 
• Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him

Finally, see more items on O. Henry's pardon application and related clemency issues at the Pardon O. Henry! blog.

IPOT study to grade Texas eyewitness ID policies at local police, Sheriffs

The Texas Tribune this morning published a story about a research project your correspondent is spearheading on behalf of my employers at the Innocence Project of Texas to analyze new eyewitness identification policies which Texas law enforcement agencies were supposed to adopt by September 1 of this year. The story by Brandi Grissom opened:

The Innocence Project of Texas is preparing to grade about 1,200 law enforcement departments statewide on their compliance with a law that requires police agencies to adopt eyewitness identification policies.

“Unless somebody is really grading their papers, nobody knows whether the law is really being implemented,” said Scott Henson, a policy consultant for the Innocence Project.

Last year, Texas legislators approved a measure that required police agencies to adopt policies meant to prevent faulty eyewitness identification in criminal cases. Under the law, departments were required to adopt a written policy by Sept. 1. Last week, the Innocence Project sent the departments letters requesting copies of their lineup policies.

Faulty eyewitness identifications are the leading cause of wrongful convictions, according to the New York-based Innocence Project. In 297 DNA exonerations across the nation, the Innocence Project reported, mistaken identifications contributed to 75 percent of the wrongful convictions.

In Texas, faulty eyewitness identification contributed to wrongful convictions in 40 of the 52 DNA exonerations, according to the National Registry of Exonerations.

“There’s almost nothing more powerful in a courtroom than eyewitness testimony,” Henson said.

The story quoted Assistant Chief Bryan Carlisle of the Shenandoah Police Department, "who has been traveling the state conducting training for the Texas Police Chiefs Association," declaring that “We really thought as a profession we had been doing right,” but “Now, science has caught up and said, ‘Hey, there really is a better way to do this.’” He hoped, as do I, that "what they’ll find is that most agencies are in compliance with the law."

As background, regular readers may recall that:

Legislators instructed the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy on eyewitness identification that departments could use as a template.

That policy sets out guidelines for conducting lineups in a way that does not suggest to witnesses whom they should select. Those guidelines are the criteria against which the Innocence Project of Texas plans to judge the policies that departments have adopted, Henson said.

Among other things, the criteria include ensuring that the person presenting the photos does not know who the suspect is, asking witnesses how confident they are that the person they identified is the same one they saw at the crime scene, giving witnesses instructions that include letting them know the perpetrator may not be among the choices presented, showing potential suspects sequentially instead of simultaneously, and choosing subjects for the lineup who have similar characteristics to one another and to the suspect described.

Texas' new law allows agencies to diverge substantially from the "model policy" when crafting their own local standards. So it's possible for departments to comply with the law but still avoid adopting best practices. The IPOT analysis will grade departmental policies based on compliance with the LEMIT model policy, weighting its components based on the most critical elements identified in the research on eyewitness identification practices. Anecdotally, many departments have welcomed LEMIT's legislatively mandated advice, while others have been more resistant. Until the policies come in and are analyzed, though, there's no way to know which how many agencies adopted key elements from the model policy and how many failed to do so.

IPOT's open records requests apparently began to hit yesterday. As of this morning, we'd already received policies from 77 departments at a dedicated email address set up for the project.

Notably, though the best practices promoted in the model policy will significantly reduce eyewitness errors, but they will not eliminate them. That's because eyewitnesses, especially when they did not know the perpetrator before the crime event, tend to make relative judgments, and one lineup member will always look more like the perpetrator than the others, even when the actual perpetrator is not in the lineup. The most comprehensive field study on the topic found that, even using best practices including sequential presentation, 12.2% of eyewitnesses chose a filler instead of the suspect. (And of course, it's impossible to say how many suspects chosen were really the wrong person.) So requiring new policies won't be a panacea, but it's an important first step toward reducing eyewitness errors and, by extension, the rate of false convictions based on them.

Immigration roundup: Deportation facts and fears

As Grits prepares to moderate a panel tomorrow at UT-Austin's LBJ School on alternatives to pretrial immigration detention, several recent stories caught my eye that merit readers' attention.

First, from the New York Times, see "Record number of foreigners were deported in 2011, officials say" (Sept. 7), which reported that "Immigration agents deported 391,953 foreign-born people during the 2011 fiscal year, the department’s Office of Immigration Statistics reported. They included more than 188,000 people who had been convicted of crimes in the United States — an “all-time high” for such deportations, the report found." What's more:

In addition to formal deportations, last year Homeland Security Department agents expelled about 324,000 foreigners back to their countries without formal court proceedings, according to the report. Most were illegal immigrants who agreed to leave voluntarily after they were detained, rather than be removed by the authorities. 

According to the new figures, Immigration and Customs Enforcement, which is known as ICE, detained about 429,000 immigrants last year, another record.

At the Mexican border, reported the NY Times, "2011, the Border Patrol captured about 335,000 migrants trying to cross illegally, the lowest number since 1971, and the figures are continuing to drop. High rates of unemployment here and intensified border enforcement have discouraged many migrants from Mexico and Central America from attempting illegal crossings, officials said."

Relatedly, via the TM Daily Post, I ran across this Los Angeles Times story ("Deportees to Mexico's Tamaulipas preyed upon by gangs," Sept. 8) depicting what happens to some Mexicans who're sent back, pointing out that around one-quarter of deportees to Mexico are sent to the state of Tamaulipas, though most of them aren't from there. Criminal gangs have begun targeting them for kidnapping.  "In the [bus] station, gang members sidle up to migrants and ask questions. Those with deep ties to the U.S. are deemed secuestrable, or 'kidnapable.' Young migrants are potential recruits." According to AP, this summer "The U.S. government has halted flights home for Mexicans caught entering the country illegally" as a cost saving measure, though they may resume soon in a redesigned program.

Finally, the Fort Worth Star-Telegram republished an exceptional (and lengthy) story out of Washington state depicting pretrial detention policies for immigrants held on civil infractions, honing in on political machinations by the GEO Group to build a pretrial detention facility in Tacoma (while ignoring state environmental regulations) and an individual case of an undocumented immigrant, brought here 18 years ago by his parents, who was arrested for driving with a suspended license and who's been held for more than a year awaiting the outcome of deportation proceedings. The story demonstrates in excruciating detail a factor Grits thinks is often under-emphasized: The extent to which immigration law is in many respects a complex subset of family law, implicating myriad familial relationships from the parents who first brought the fellow here to his ex-wife to whom (until his incarceration) he paid $900 per month in child support on behalf of their three children. The name of his oldest daughter: "America."

'District Attorneys' Report: Misconduct Exceedingly Rare'

I'm busy today with other work so an in-depth analysis must wait till later, but I wanted at least pass along the link I received today via email from prosecutor lobbyist Shannon Edmonds declaring that, "The Texas District and County Attorneys Association (TDCAA) recently completed a 31-page report on prosecutorial misconduct in Texas. The report and related documents are now available at http://www.tdcaa.com/reports/setting-the-record-straight-on-prosecutor-misconduct."

The report aims to debunk data presented last spring by the national Innocence Project from a cursory  review of appellate cases, found via the Lexis legal database, which TDCAA says was rife with error and overstatement. The Texas Tribune today published this item on the report with the same title as this post. Here's TDCAA's press release (pdf) promoting the document. See a summary of TDCAA's "key findings" below the jump:

Justifying tax increases in Lubbock: Better to discuss civil war, UN takeover than predictable jail boondoggle

I'd heretofore ignored the asinine assertions from Lubbock County Judge Tom Head regarding the possibility of President Obama's reelection launching a civil war and spurring a United Nations takeover of Lubbock County, but a couple of recent commenters pointed out the real reason for such hyperbolic rhetoric: Masking the need to spend more covering the county's speculative county jail expansion, which was supposed to bring in enough additional revenue to let the county reduce taxes. Here's a summary from the Austin Statesman of Judge Head's earlier public reasoning for Lubbock's latest tax hike:

If President Barack Obama is re-elected in November, Head declared, "I'm thinking the worst. Civil unrest, civil disobedience, civil war maybe." The tax increase is necessary to fund contingency plans, the judge continued. Obama, Head said, will turn the U.S. over to the U.N. Resistance will naturally follow. "And we're not just talking a few riots here and demonstrations, we're talking Lexington, Concord, take up arms and get rid of the guy."

Nutty as a Corsicana fruit cake, that one. The comments went viral nationally, adding to our state's reputation as Wingnut Central. The Lubbock Avalanche Journal's editorial board, though, supplied a bit of lipstick for this pig over the weekend, and in doing so identified the real reasons for Lubbock's proposed tax increase:

Considering the proposed Lubbock County tax increase, it’s unfortunate County Judge Tom Head cast a cloud over it with his strange comments about President Obama bringing in United Nations troops to quell civil strife if he’s reelected.

The proposed increase would fund public safety matters involving the sheriff’s office and criminal district attorney’s office.

The tax increase would raise the county taxes about $20.64 for a $100,000 home.

Criminal District Attorney Matt Powell’s office would receive about $200,000, which would be used to buy two vehicles and pay raises for prosecutors.

Powell said he has lost 20 prosecutors — from a staff of 35 — in the last three years. Some went to private practice, but about half went to other prosecutor offices where they could make more money.

Powell wants more to stay in Lubbock and we all want the most experienced prosecutors in our courtrooms.

Sheriff Kelly Rowe’s office would receive about $890,000 if the tax increase passes. He would add seven new deputy positions and vehicles and would increase starting salaries, which will help him attract and retain more qualified employees.

Here's the real deal: Anyone who could perform basic arithmetic has known for years that Lubbock's speculative jail expansion would require significant tax hikes, a situation that was exacerbated when the county couldn't attract enough outside inmate contracts to fill it. Dave Mann at the Texas Observer called the county judge out on this two-faced diversionary tactic:

The sheriff’s department has asked for funding increases in recent years. The reason it needs more money? Mismanagement by Head and other county officials. (For all you out-of-staters: In Texas, the “county judge” is actually an elected administrator, who along with the other county commissioners, oversees county government.)

In 2011, Lubbock County opened a massive, 1,500-bed $100 million county jail. The county didn’t need a jail nearly that big, but Head and other officials hoped to lease out jail space to the federal government or other outside entities that needed to stash prisoners somewhere.

This is a racket that many communities in Texas have tried with diminishing returns. (The criminal justice blog Grits for Breakfast has excellent coverage of the issue here and here.) Lubbock County missed the boom in immigrant detention, and now the big expensive jail sits only 70-percent full, according to the Lubbock Avalanche-Journal.

Meanwhile the staffing costs of operating the massive jail are draining sheriff’s department resources, which has led to call response times going up and some cases going uninvestigated.

As the Avalanche-Journal reported last year, “The almost $100 million county jail dominated county budgets even before voters approved $82 million for its construction in 2002. Call times have languished and cases gone without investigation as spending on the roughly 1,500-inmate facility crowded out new deputies and other officers for the growing county.”

The county instituted property tax increases to help pay for the jail, but it’s still been a disaster that’s straining county resources.

All that eventually comes back to Tom Head, who’s been county judge since 1999.

So the situation is by no means new and certainly has nothing to do with Barack Obama: The Avalanche-Journal reported in 2010 that "Construction of the more than 1,500-bed, high-tech jail facility east of the airport had driven the bulk of six tax increases over the past 10 years." Of course, that same article quoted a county commissioner predicting that "Millions of dollars the jail saved once opened would go to buying down the tax rate as much as possible," but now that the jail is open, they're still raising taxes. Is anyone really surprised?

See prior, related Grits posts:

• Lubbock can't find contract inmates to fill overbuilt jail
• Speculative Lubbock jail opens with no prisoners to fill it
• Lubbock taxpayers eating costs for overbuilt jail
• Jail costs driving tax hikes in Lubbock 
• NPR investigates Lubbock's bail system: Should taxpayers foot $7k incarceration bill for stealing $30 worth of blankets?

TDCJ budget grew 274% more than inflation, population growth since early 80s

This morning, out of curiosity, Grits decided to run a few numbers comparing historic Texas corrections budgets to spending at TDCJ for the current biennium. The 67th Texas Legislature, writing a budget (large pdf) for fiscal years 1982 and '83, allocated $468 million for what was then the Department of Corrections, and another $52 million for adult probation, for a total of $520 million for the biennium. (Texas budgets in two-year cycles.)

If the prison/probation budget had merely increased in line with inflation (using 1982 and 2012 to estimate) this biennium it would have reached $1.2 billion. Adjusting for both inflation and population growth (Texas' population increased roughly 76.7% over the period using 1980 and 2010 census figures as benchmarks), the total corrections budget this biennium would have been a little more than $1.6 billion.

Texas taxpayers should be so lucky. By contrast, the most recent Texas Department of Criminal Justice budget (with adult probation services now combined in the same agency with the prison system), allocated a whopping $6.1 billion for FY 2012-2013.

So this biennium's corrections budget was an eye-popping 274% higher than it would have been if spending had increased in tandem with inflation and population growth.

This is a rough estimate - the population data I used don't match precisely with the inflation data, and for this estimate I didn't dig deeper for precise apples-to-apples figures. But the number is pretty darn close, and it puts the lie to the notion that Texas corrections spending has increased over the last three decades mainly due to population growth, which is a meme Grits has debunked in the past but without the accompanying budget calculations.

Corrections spending has increased over the past three decades mainly because of policy choices by the Texas Legislature. We may not be able to alter population growth or inflation, but we can make different choices about who to incarcerate and why, and these data shows that different policy choices could make a huge difference to taxpayers.

'Applying Lessons From Criminal Justice Reform to the Immigration Detention System"

I wanted to give readers a heads up about an event next Wednesday at UT-Austin"s LBJ School of Public Affairs sponsored by the group Human Rights First, where Grits will be moderating a panel on the subject of alternatives to detention in the immigration system, drawing on lessons from pretrial services program in the criminal justice realm. See the agenda (pdf). The all-day event, with the same title as this post, is open to the public and the whole thing looks quite interesting. Below the jump, see more information on the panel I'll be participating in:

TPPF: Reclassify nonviolent misdemeanors to save county indigent defense costs

At the Texas Public Policy Foundation, Vikrant Reddy recently published a briefing paper recommending methods of reducing the burden of indigent defense costs for Texas counties, which he correctly noted have been "rising quickly." In 2011, reported Reddy, "Texas courts paid over $198 million (about $165 million was paid by counties, and $33 million was contributed by the state) to serve indigent defendants, a 108 percent increase (in inflation-adjusted terms) over the $95 million spent in 2001."

Most of his suggestions require criminal court judges and county commissioners to change local practices, but he suggested one item that's clearly within the Legislature's purview and which would provide immediate relief to counties groaning under the burden of rising indigent defense costs: Reclassifying more misdemeanors as fine-only offenses. Wrote Reddy:

Interview with new TJJD head

The Texas Tribune has published a brief interview with incoming director of the Texas Juvenile Justice Department Michael Griffiths. Those interested should give it a read. See also additional coverage from the Austin Statesman and the Texas Tribune from when Griffiths was installed last month on a narrow, 7-6 vote.

MORE (Sept. 7): The new executive director didn't have to wait long for new controversy to find the agency, as legislative leaders launched heated criticisms in the Austin Statesman today of recent raises for TJJD executive staff which were handed out last spring soon after the agency was formed. Senate Criminal Justice Committee Chairman John Whitmire called on TJJD board chair Scott Fisher to resign, though Fisher said the raises "were not a board-level decision." Meanwhile, outgoing House Corrections Committee Chairman Jerry Madden opined, "This was thumbing their nose at the Legislature, and there's usually a serious penalty to be paid for that." Perhaps so. Since they've already run the executive director who gave the raises out of the agency on a rail, however, I'm not sure what further penalty the Lege can exact besides rescinding the pay hikes.

Mike Ward quoted Chairman Whitmire saying. "We have more than 200 state agencies, and not one of them has ever come even close to doing something this stupid." But DPS in recent years gave even bigger pay hikes to a larger number of executive staff without being similarly berated. When TDCJ was given extra money for raises to front-line prison staff in 2009, they dipped into those funds to give substantially larger pay hikes to administrators. Parole board chair Rissie Owens was given a substantial raise despite having dragged the agency into an enormous federal litigation mess over mis-applied sex-offender conditions. And Ward's own paper reported in July that the Texas Department of Transportation recently gave much larger raises to top officials than we're talking about here. The TJJD raises may be untoward, but they're not unprecedented. For once I'd like to see issues at this agency discussed in the press without anybody shouting "off with their heads" like some character out of Alice in Wonderland.

Good luck, Mr. Griffiths. You're going to need it.

Criminal justice reform and the 2012 GOP platform

The Right on Crime monthly newsletter includes this fascinating commentary about changing attitudes in the Republican party on criminal justice as reflected in the party's platform::

Although the Republican National Convention is over, the GOP's 2012 platform includes some exciting policy shifts for criminal justice reform.

Rejecting a "one size fits all" approach to crime and prisons, the GOP's 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society. :: Read more about criminal justice reform in the GOP platform here

Also, last week, Marc Levin, Right on Crime's senior policy advisor, was interviewed by the Washington Post about the GOP's changing views on prison reform. In the article, Marc Levin discusses the conservative case for reform and how states can be successful in implementing alternatives that hold nonviolent offenders accountable and reduce re-offending, which the GOP platform now advocates.

The conservative approach is much different from locking everyone up regardless of the nature of the offense and throwing away the key, but it's also different from the mistaken notion that society causes crime, not criminals, which dangerously undermines personal responsibility.

Here, at Right on Crime we have all worked to present the conservative case for reform and are happy to see the GOP platform is advocating for criminal justice reform. :: You can read the article here.

The Washington Post story makes a particularly astute observation about changes in the party platform's approach to the war on drugs:

Four years ago, Republicans devoted a section in their platform to the War on Drugs, lamenting the “human toll of drug addiction and abuse” and vowing to “continue the fight against producers, traffickers, and distributor of illegal substances.”

That plank is conspicuously missing from the GOP platform this year. The fight against illegal drugs is only mentioned in passing, mostly with reference to drug cartels and the ban on using controlled substances for doctor-assisted suicide.

Granted, party platforms mean little when it comes to actual governance and are mostly about throwing ideological bones to the party base. But it's remarkable that a document articulating a vision endorsed by the GOP base has changed its tune on these subjects to such a degree. Just a decade ago I doubt anyone would have predicted it could happen.

A number of other items mentioned in the Right on Crime newsletter merit Grits readers' attention:

'Solitary confinement reform needed'

The title of this post is the headline to an Austin Statesman staff editorial arguing to reform solitary confinement ("ad seg") policies and procedures to reduce recidivism and prepare prisoners kept in isolation for reentry when their prison terms are up. Here's an effective excerpt:

The fact that hundreds of convicts deemed by prison officials to be too dangerous for the general prison population are going from solitary to release, Ward reported, seemed to stun members of the Senate Criminal Justice Committee during a hearing Tuesday at the Capitol.

The state senators called on prison officials to develop programs for inmates in solitary.

"Why not give them some life-skills or some faith-based programs or something that can prepare them for when they get out, rather than just turning them loose," state Sen. John Whitmire, the Houston Democrat who chairs the Criminal Justice Committee, asked prison officials.

Inmates in solitary confinement typically spend 23 hours of each day in their cells. They are let out for an hour to exercise and shower.

A Texas inmate shipped off to solitary can find himself in isolation for an indefinite stay. The average is 3.2 years. Some inmates are locked away alone for a decade or more.
Texas prison officials said that most Texas inmates kept segregated from the general inmate population — about 60 percent — are gang members, Ward reported.

No doubt there is a small group of inmates who truly need to be separated from the general prison population, but the experience elsewhere, according to various reports, is that most inmates in solitary confinement are there for relatively minor reasons. They are not among "the worst of the worst" — the common assumption regarding prisoners in solitary confinement — and do not need to be kept isolated for sustained periods of time.

See Grits coverage of the Senate Criminal Justice Committe hearing on Tuesday discussed in the editorial.

Legislators focused on reentry heading into session

The Texas Criminal Justice Coalition sent out an email today (see the online version) providing recaps of yesterday's Sunset Advisory Commission decision meeting regarding the Department of Criminal Justice (see Sunset's staff report) and Tuesday's Senate Criminal Justice Committee hearing (which Grits covered in some detail), including links to the group's written testimony.  See also a good SA Express-News story on yesterday's Sunset Advisory Commission meeting; here's a notable excerpt:

The Texas Sunset Advisory Commission — composed of state lawmakers and public members who periodically review state agencies — recommended changes Wednesday to better coordinate and focus on programs for offenders' re-entry into society.

The first step toward a plan: Write it down.

Sunset commission staff reported that “no written plan exists” nearly three years after lawmakers approved legislation requiring a re-entry plan.

A steering committee convened by the Texas Department of Criminal Justice, which also includes parole and prison education officials, hasn't yet established clear timelines to create such a plan, staff wrote.

There also is no comprehensive assessment of offender risks and needs, according to the report.

It said case management is fragmented and information sharing is limited among the criminal justice agency, the Board of Pardons and Paroles and the Windham School District, which serves the criminal justice system.

Besides calling for a written plan, the commission recommended requiring a system-wide risk and needs assessment for offenders and an individual treatment plan. The recommendations will go to the Legislature, which convenes in regular session in January.

TCJC also provided a link to the new report from TDCJ's Reentry Task Force (pdf), which included this welcome if long overdue bit of news regarding ID cards for prisoners exiting the system: "TDCJ, DSHS and DPS are in the process of finalizing interagency contracts for issuing the state identification card through an electronic process. A pilot program for identification card applications and processing will be operational in Spring, 2013."

Austin PD withheld Brady material, administrators contradict each other on infiltration of Occupy movement

Austin police administrators gave contradictory statements to Austin Chronicle reporter Jordan Smith about their use of three undercover operatives (or, perhaps, provocateurs) who infiltrated the Occupy Austin organization.

Police detective Shannon Dowell built a "lockbox" device for use at a Houston sit-in, the use of which upped criminal charges against the protesters from a misdemeanor to a felony. Reported Smith, such a "device usually must be cut off, posing risk to the user and, potentially, to the police or firefighters doing the cutting, if booby traps are employed inside the pipe." Further, "It was those concerns about safety, says APD Assistant Chief Sean Mannix, that prompted APD detective Shannon Dowell to get involved last December in constructing a series of lockboxes that the seven protesters were arrested for using at the Port of Houston."

So according to Mannix, the officer's actions were part and parcel of the intent of the operation to promote the safety of protesters and law enforcement. However, Austin police chief Art Acevedo told Smith that the undercover activities "went beyond the scope of the mission ... that was established at the executive level." "The trouble wasn't coming from the 'core Occupiers,'" says Acevedo, ignoring that the trouble was coming in part from APD's own officers. The chief told Smith that "'we are reviewing the matter, from top to bottom,' ... to see where the mission might have gone astray, in order to keep anything like that from happening in the future."

Which is right? Mannix's comments imply the officers were doing exactly what they were put there for, while if Acevedo is correct, it speaks to gross failures in management and oversight.

Regardless, the claim that the purpose of the undercovers was to protect the First Amendment rights of protesters is outright Orwellian. What a low opinion of public intelligence they must have to imagine anyone is stupid enough to believe such a disingenuous comment! (Sadly, the low opinion is probably justified. After all, the MSM keeps repeating the claim.)

Then there's APD's blatant recalcitrance when ordered to submit records for judicial oversight. Reported Smith:

Based on the transcripts of an Aug. 27 hearing in Campbell's court, the judge has not readily embraced the APD's official story. Dowell was subpoenaed by Gladden to attend the pretrial hearing, and to bring with him all written and electronic records – police reports, text messages, emails, pictures, and notes – related to his Occupy assignment. But Dowell showed up, essentially, empty-handed. He had photos on a thumb drive of the boxes and the woman he delivered them to, he testified, but he somehow lost that drive on the way to court; he had emails on a work computer (and, it seems, on a personal computer as well) and phone messages, but said he had deleted them. He brought with him only "a little note that I made here regarding [an Occupy] meeting," he said. There are no written police reports, he said; since there was no criminal investigation ongoing, there was no reason to write an official report for the APD system, he testified. Judge Campbell did not seem impressed: "When he is sent a subpoena and he doesn't respond and he doesn't come with his own attorney," she said, "I think they lose a little bit of the dignity that they should be carrying themselves with."

At the end of last week's hearing, she told prosecutor Joshua Phanco that the state must produce the names of Dowell's undercover APD cohorts or see the case dismissed. The two other officers are fact witnesses who could help determine whether the police induced the activists' use of the lockboxes. On Wednesday, those names were provided to the court for the judge's private inspection. Also provided were documents related to the APD's undercover mission, though court watchers said that some of those documents were redacted – which did not appear to make Campbell happy. A motion was also filed to quash the subpoenas for the APD's undercover officers, including Dowell, to appear in court, though the judge has not yet ruled on that request. Campbell has again reset the hearing, for Sept. 25, in order to give her time to review all of the relevant documents.

This "dog ate my homework" excuse is simply not credible. KTRK-TV reported that, in court, "APD dodged most questions Wednesday" at the latest hearing, where according to the Houston Chronicle, "State District Judge Joan Campbell lectured prosecutors ... about not disclosing the police officers' roles in the case." However, according to the Houston Chronicle:

prosecutors told the judge they had no idea the Austin Police Department evidently planted an officer in the movement, until defense attorneys subpoenaed him.

"Had we realized that an undercover officer was involved" and had participated in the construction of the dragon sleeves, "that is clearly Brady material," Harris County prosecutor Colleen Barnett said in an interview after the hearing. "Had we known that, we would have turned it over to the defense."

"Brady material" is exculpatory evidence that's required by law to be handed over to defendants. Police failing to hand that information over to prosecutors - much less destroying it, as Dowell may have done - is a bigger deal, even than the alleged entrapment. Given that, I find bewildering the statement from Assistant Chief David Carter to the Austin Statesman that "Nothing officials have seen initially indicates department policies were violated." Is there not a policy in the department to turn over Brady material to prosecutors?

As Grits mentioned previously, I've little sympathy nor patience with the Occupy protesters' methods - which I earlier called "dumb as a bag of hair" - and in most cases I think anyone foolish and narcissistic enough to intentionally get themselves arrested at such an event deserves what they get. But here the police sought not to deter crime but to worsen it, facilitating felonious actions instead of thwarting them, and withheld exculpatory evidence from prosecutors. Combine that with the contradictory justifications from APD administrators - disavowing their officers' activities while simultaneously justifying them - not to mention the evasive refusal to provide documentation to the judge, and it's difficult not to find understated the judge's observation that, at the very least, the episode caused the department to "lose a little bit of the dignity that they should be carrying themselves with."

'Nice Tails': Prosecuting seafood-related crime

Regular readers know that your correspondent has found great amusement ribbing legislators for their passage of various seafood related crimes, from the 11 felonies Texans can commit involving oysters to last session's new felony for misrepresenting the size of a fish in a tournament. Now, the first felony charges have been filed for misrepresenting the size of a fish, the Houston Chronicle reported Monday, against seven women and their fishing guide for exaggerating their catch, a 3rd degree felony offense which could garner each of these nefarious culprits up to 10 years in prison. Reported the Chron:

Game wardens inspecting the takes of the "Nice Tails" team at the annual Ladies Kingfish tournament last month knew something was up when they saw a trout with a mottled belly and a flounder whose appearance since the team's last inspection was fishy at best.

The unlikely "catches" to them were another example of a sort of open secret: that cheaters were among the competitors for the thousands of dollars in prizes awarded during one of South Padre Island's biggest events.

As you might expect, Grits considers this new felony both dumb and unnecessary, and since I've already explained why I'll just repeat those comments here.

On the perils of reentry following solitary confinement and possible solutions

In FY 2011, the Texas Senate Criminal Justice Committee was told yesterday, 878 individuals who'd been locked up in administrative segregation (commonly referred to as "ad seg," which is Texas' version of solitary confinement) were released directly to the streets without parole supervision of any type after finishing out their full sentence. Most of these individuals left with $100 in their pocket and a bus voucher - usually to their county of conviction - without so much as a photo ID to help them begin the long, difficult path to reintegration into their home communities. Indeed, for mentally ill inmates in ad seg released after serving their full sentence, there is no continuity of care program to ensure they'll continue to receive medication once they're back in the free world. (Such a program exists for inmates released receiving HIV medications, but not for the mentally ill.)

Another 469 individuals during FY 2011 were paroled directly from ad-seg, Department of Criminal Justice (TDCJ) executive director Brad Livingston told the committee. As was pointed out in Texas Criminal Justice Coalition's written testimony, "Inmates on parole have the advantage of being able to participate in a District Reentry Center, which generally offers more robust programming and resources during the transition into the community." The greater number, though, who are released directly from ad seg, leave prison completely unsupervised.

All told, around 8,100 Texas prison inmates are presently locked up in solitary confinement, down from 9,500 in 1996, said Livingston. According to testimony from Travis Leete of the Texas Criminal Justice Coalition (TCJC), "2,060 individuals in administrative segregation were identified with a serious mental health or mental retardation diagnosis in 2011. This is an increase from 1,960 in 2010." Sen. Whitmire said in his opinion TDCJ built "too many" ad seg units during the 1990s prison expansion.

Nationwide, "The U.S. Department of Justice’s Bureau of Justice Statistics (BJS) estimates that the number of people in restricted housing settings increased from 57,591 in 1995 to 81,622 in 2005," according to Leete's written testimony for TCJC. In Texas, those in ad seg are locked up in a 6'x9' room for 23 hours per day (Whitmire said they're "being held essentially in a closet") and let out for one hour per day for recreation, though even then they're by kept themselves in small, fenced in areas away from the general population.

Mike Ward at the Austin Statesman had the only substantive MSM report from the hearing ("Senators push for rehab programs for the state's most violent prisoners," Sept. 5) which conveyed Chairman Whitmire's disgust at the idea that inmates who were deemed to dangerous to be in the general prison population were being released directly to the streets:

Livingston and Rick Thaler, the agency's assistant director over prisons, said the toughest convicts are the hardest to safely provide programs for. They cannot be included in regular treatment and rehabilitation programs offered to the state's other imprisoned felons "because we can't endanger the offenders in general population," Thaler said.

"But you can let them discharge onto the street when they finish their sentence, straight from spending every day for 15 years locked up alone in a small cell?" Whitmire asked. "Why not give them some life-skills or some faith-based programs or something that can prepare them for when they get out, rather than just turning them loose?"

Other states offer a variety of programs for felons in administrative segregation, especially for those who are due for release within a year. Several senators questioned whether Texas should consider modifying its isolation policy.

To Grits, the notion that TDCJ is releasing so many people from ad seg to the streets without giving them the opportunity to go through the gang renunciation program seems especially troubling. Regular readers will recall that Texas prison gangs are responsible for an extraordinary amount of north-to-south "spillover violence" along the Texas-Mexico border, with groups like Barrio Azteca serving as soldiers and hit men for Mexican drug cartels. Death totals attributed to Texas prison gangs in Mexican border towns run into the thousands. So to me, encouraging gang renunciation while in prison - right down to providing tattoo removal services and intensive monitoring during reentry - is of critical, immediate importance, particularly as it relates to reducing violence along the border. To learn that many gang members are released while still on the GRAD waiting list - many of them without even being supervised on parole - was particularly discouraging.

Sen. Joan Huffman asked Brad Livingston if offenders "earn their way into ad seg" and he answered, "for the most part, yes," but it became clear during questioning, as Chairman Whitmire later noted, that a large number of inmates are placed in solitary due solely to TDCJ's classification judgments as opposed to misbehavior once incarcerated.

There are two ways offenders get into ad seg, Livingston told the committee: Being identified as a member of a "security threat group" (read: "prison gang") or misbehavior, especially violence against staff or other inmates, while locked up. Of those, about 60% are in ad seg because they're members of a security threat group, with the other 40% in ad seg because of their behavior. Those in prison gangs are identified by tattoos, past associations, or their inclusion in the statewide prison and street gang database and may be placed into ad seg from the get-go, sometimes serving their entire sentence start to finish in solitary. Others are identified through gang associations established at their unit, or put there because they're determined to be a threat to prison staff and/or other inmates. According to data provided by TCJC, "about one-third of the individuals currently in administrative segregation in Texas were originally incarcerated for nonviolent offenses." Some of those result from misbehavior once inside, but many are there because of alleged gang affiliations.

There is a program for gang members to theoretically earn their way off of ad seg called the Gang Renunciation and Disassociation (GRAD) program, but there is a significant waiting list (officials couldn't tell the committee how long it is) and the program's current capacity is only 61 inmates. To enter the program, the inmate must go through a 12-month observation period (until recently it was 24 months) during which it's supposedly determined if the offender has ceased gang-related activity.

Chairman Whitmire suggested many experts would say such an assessment needn't take even 12 months and  asked what I thought was a very good question: Given that ad seg inmates are afforded no human contact except with guards, how can they possibly demonstrate gang renunciation? "What evidence are you looking for?" he asked. The answer was basically monitoring inmate correspondence, in-cell behavior, and assessing their interaction with guards who feed them and take them to their (otherwise solitary) one-hour recreation sessions. That seems like a sparse dataset indeed for making such a judgment.

That said, there has been some, minor movement toward improving ad-seg corrections policy. This July, TDCJ began to offer programming (mostly via in-cell video) to 67 ad seg inmates in the Estelle unit, and the agency hopes to expand the program going forward, said Livingston. Sen. Huffman asked if the goal was eventually to provide programming for everyone in ad seg, but Livingston hemmed and hawed, saying it might be a long-term goal but wasn't immediately something they were working toward.

Vikrant Reddy of the Texas Public Policy Foundation told the committee about a program in Mississippi launched in 2003 which he said successfully reduced that state's number of prisoners in ad seg from 1,000 to around 150 today, which seems like a remarkable achievement, and saved more than $5 million annually. Searching around for more detail on that effort, I ran across this academic paper (pdf) describing the process. Mississippi adjusted its front-end classification system regarding who is placed in ad seg, began holding regular group treatment sessions with four ad-seg offenders each, and created a "step-down unit" where ad seg prisoners go for an average of 3-6 months before being reintegrated into the general population. Prisoners "are considered ready for discharge from the program when their treatment plans have been accomplished and their conditions have become stable. After being discharged, a prisoner may be readmitted [to ad seg] if he experiences a relapse."

Notably, reducing the number of ad seg prisoners by 85% not only didn't increase prison violence, in fact, "the number of incidents requiring use of force plummeted (e.g., spraying a prisoner with immobilizing gas or taking down a recalcitrant prisoner). Monthly statistics showed an almost 70% drop in serious incidents, both prisoner-on-staff and prisoner-on-prisoner." That's a remarkable achievement, both from a policy and a political perspective. If Mississippi can accomplish that - and they're as red as red states come - one imagines Texas could safely reduce its ad-seg population as well. Presently, about 1% of Mississippi prisoners are in ad seg units, compared to more than 5% in Texas.

According to recent testimony before Congress from the Vera Institute of Justice, Ohio reduced its ad seg population using similar methods to Mississippi. Their number of ad seg prisoners "went from 800 to 90" as a result of Buckeye-state reforms. The difference between ad seg in Texas compared with Mississippi and Ohio is mainly one of scale. But if they can reduce their ad seg populations so dramatically, Grits sees no good reason why Texas couldn't pull it off.

For more background on the effects of ad seg when offenders re-enter society, see a report published in August by the American Friends Service Committee titled "Lifetime Lockdown: How Isolation Conditions Impact Reentry" (pdf). And as always, the blog Solitary Watch remains a go-to source on all things ad seg.

MORE: A reader alerts me to a recent, related NY Times column from philosopher Lisa Guenther titled, "The Living Death of Solitary Confinement." AND MORE: See coverage of the hearing from the Texas Tribune.