Austin PD requires supervisor approval for consent searches, alters policies on mental health, use of force

Austin PD Chief Art Acevedo announced several significant policy changes today, reported the Austin Statesman's The Blotter blog:

—Officers must now seek approval from their supervisors before they ask to search a person’s home or vehicle. “We believe this will improve and enhance accountability,” Acevedo said. Consent to search a person’s property must be gained in written and videotaped form. The new policy notes that “Officers should be aware that overuse of the consent search can negatively impact the department’s relationship with our community and only request a consent search when they have an articulable reason why they believe” a search will result in evidence.

—In cases where a suspect is known to be mentally or emotionally disturbed, a minimum of four officers along with a sergeant will be sent to the scene, and at least one of them must be specially trained in handling such issues. Acevedo said this change was spurred by several recent incidents involving violence by homeless suspects and other people with mental health issues. “We will greatly decrease the potential for use of deadly force,” Acevedo said.

—Officers are now barred from placing themselves in the path of a moving vehicle. “What this policy says is, ‘Don’t you create a problem,’” Acevedo said, referring to his officers. Deadly force against the driver of a car is authorized when officers believe the vehicle is being used as a weapon against the officer or other people.

When I saw the headline, I'd hoped the changes would include upgrading the policy on arresting citizens filming police in the line of duty, but certainly these are all significant and positive developments.

The consent search issue in particular has dogged the city for years and it's good to see it publicly addressed. The department had at one point required written consent for searches at traffic stops. However, that policy was at some point rescinded, then reinstated this summer after the Police Monitor revealed that one in eight traffic stops involving black folks resulted in searches in 2011 compared with one in 28 among white drivers. Requiring supervisors' approval will provide much more accountability.

Noted the Statesman, "Acevedo announced the changes along with Austin NAACP president Nelson Linder and Texas Civil Rights Project Executive Director Jim Harrington. The two previously prompted the U.S. Department of Justice to investigate the police department."

Profiteering off murder and misery: Who does more damage, the MSM or murderabilia peddlers?

Clyde Barrow's Colt pistol, via the Waco Tribune Herald

Since Texas passed a law a decade or so ago banning so-called "murderabilia," or selling mementos from famous killers, I found it interesting to notice via the Waco Tribune Herald that several items related to famed bank robbers Bonnie and Clyde are up for auction this weekend. The Texas law has never been effectively enforced, in part because of the rise of out-of-state Internet auction sites, and it only bans killers themselves profiting from such items, so it wouldn't affect Bonnie and Clyde memorabilia, in any event. But the auction underlines how faint is the difference between "murderabilia" and "history." Some of the items on sale were formerly displayed at the Texas Ranger Museum in Waco. Texas' statute on murderabilia, as described by the Houston Chronicle, "calls for the confiscation of any profits that are inflated because of a criminal's notoriety." To me, though, it is the mainstream media more than anyone else who chiefly profits from criminals' "notoriety": Sensationalist crime coverage is their bread and butter, exemplified by the local TV news mantra, "If it bleeds, it leads."

Former federal District Judge Nancy Gertner, who retired last year to teach at Harvard Law School, recently authored an opinion piece titled "The Media's Reporting on Justice is Criminal" which critiqued the MSM for "beating the drum" in individual cases with formulaic, slanted coverage that misunderstands and distorts the criminal justice process. The reason the media do that, of course, is that it draws more eyeballs, for the same reason people slow down on the freeway to gawk at a gruesome accident. And since advertisers follow eyeballs, and advertising revenue is dwindling, in the 21st century the incentive to sensationalize crime for profit has reached heretofore unseen heights. (Witness Nancy Grace.) That's the main reason why the public thinks crime is rising even though crime rates, particularly for violent crimes, are at modern lows.

One person's murderabilia is another person's historical artifact. But neither murderers nor collectors would be able to profit from "murderabilia" if the MSM hadn't beaten them to the punch in profiteering off crime and misery.

Plea bargaining and the innocent defendant

Has the rise of overcriminalization and the ascendancy of plea bargaining heightened the risk that innocent defendants may plea guilty? Those questions were raised in a must-read article published in the Wall Street Journal this week ("Federal guilty pleas soar as plea bargains trump trials," Sept. 23) which explored the likelihood that significant numbers of innocent people are enticed to plea guilty to avoid harsh federal sentencing guidelines. From the story:

The triumph of plea bargaining in the federal system, which has gathered pace in recent years, is nearly complete. Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion. That is up from 84% in 1990. During that period, the number of federal defendants nearly doubled amid a crackdown on crimes ranging from drug trafficking to fraud, while the number going to trial fell by nearly two-thirds.

This relentless growth in plea bargaining has sparked a backlash among lawyers, legal scholars and judges—evidenced by recent federal court decisions, including two from the Supreme Court. Weighing on many critics is the possibility illustrated by the Kassab case: that the innocent could feel pressured into pleading guilty.

One troubling factor is that, when cases are plea bargained, prosecutors aren't forced to actually prove their cases or turn over so-called Brady material. "Among the legal protections given up by a defendant when he pleads is the right to receive evidence from the prosecution that supports a claim of innocence. That means a person might plead guilty to a crime not knowing prosecutors are holding exculpatory evidence."

The Journal attributed the trend to mandatory sentencing regimes in the federal system (and their state-level counterparts) which have given prosecutors extraordinary leverage in negotiating pleas:

Behind the dominance of the plea bargain is the rapid growth in the number of federal criminal laws and the stiffening of sentences by Congress and the U.S. Sentencing Commission, a board created in the 1980s. After scandals at Enron and other companies in the early 2000s, for example, Congress increased the potential sentence for certain types of fraud to 20 years from five years.

Federal guidelines not only toughened punishments but also formalized a system to reward defendants who plead guilty by reducing sentences if they accept responsibility or cooperate with prosecutors, among other things. As part of plea deals, federal prosecutors often drop additional charges that could add years, or decades, to a sentence. Going to trial brings none of those benefits for the accused.

The article cited concerns expressed in:

two related decisions this year by the Supreme Court, which said defendants hadn't been adequately represented by their attorneys during the plea-bargaining process. Plea bargains "have become so central to the administration of the criminal justice system" that defendants should receive the kind of protections associated with going to trial, Justice Anthony Kennedy wrote.

Justice Antonin Scalia dissented from the decisions but wrote that the system encourages a prosecutor to charge an individual with so many criminal counts that it "effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense."

A sidebar to the story (not available to non-subscribers) cited research by a pair of academics, Lucian Dervan and Vanessa Edkins, to be published next year in an article titled "The Innocent Defendant's Dilemma."  They studied the behavior of students falsely accused of cheating on tests, finding that "more than half of the innocent participants were willing to falsely admit guilt in return for a benefit" of reduced consequences. Their analysis of the implications of that finding deserves exploration in greater detail.

'Prison Break: Budget Crises Drive Reform, But Private Jails Press On'

The title of this post is the headline of an extensive American Bar Association Journal article which features Marc Levin of the Texas Public Policy Foundation and other national opinion leaders on corrections topics which will be familiar to Grits readers. The article closes on this (perhaps overly) optimistic note:

Few think the lock-’em-up approach is sustainable for much longer. The incarceration reform movement seems inexorable, despite concerns that if the economy continues to stall, U.S. legal systems will find more reasons and ways to put people behind bars—or that if flush times return, we will be able to afford ever-growing prison populations.

But no matter how much the economy might recover, battles will only increase over funding for education, crumbling infrastructure, various entitlement programs, outlays for medical care and more on a list of social priorities likely to eclipse the need to lock up those with whom we might be angry, but who otherwise don’t pose much threat.

“These things are enormously expensive and people care about them a great deal,” says Clear, the Rutgers criminology dean. “It used to be that in surveys of what people are concerned about, crime would be No. 1, 2 or 3. Now it’s not in the top 10, and hasn’t been for 15 years.

“I believe this change will have some legs,” Clear says. He’s been nudging it for three decades and is more hopeful than some colleagues. “History will show that the mass incarceration era has ended.”

Time for Austin PD to enact policy on filming police after 3rd arrest of local activist

Austin police can't seem to figure out when the public can or can't film them, but seem to have decided for sure that Antonio Buehler can't. The West Point graduate and Iraq war vet was arrested for the third time Friday night along with another activist from the Peaceful Streets project for filming police (the formal charge was "interfering with public duty"). Austin PD told the American Statesman that Buehler "was asked to move to an area where other people were, but he kept stepping back into where the officer didn’t want him," but witnesses (see here and here) say he complied with police requests to back away from the scene. A press release from the group described the encounter thusly:

The arrest took place at 1219 W. 6th St. near Pressler after Peaceful Streets Project members pulled their car over to witness a DWI stop. They were approximately 30' away from the detention when none-other-than Officer Oborski (the arresting officer of Buehler last New Year's Eve  ...) shined a flashlight in Buehler's face, yelling, "Mr. Buehler, back up!"

Buehler asked, "how far?" but Oborski didn't respond. Buehler asked a second time, "how far?" while already backing up, yet still Oborski wouldn't respond. By this time, Buehler and Dickerson were 40' away.

Then Officer Johnson stepped in and repeated the "back up" command, to which Buehler said "how far?" Buehler again moved back another 10' but Johnson told him to "move over there or leave." He motioned to the other side of the police vehicle, putting him CLOSER to the detention - an illogical command. Buehler continued to protest this illogical issue, while backing up further, saying that he wasn't interfering and was complying with orders to move AWAY from the scene.

Johnson said again, "move over there (closer to the detention) or leave" at which point both PSPers were nearly 60' away, and Buehler responded, "fine, I'm leaving," as he proceeded to walk away. It was this point that Johnson and Officer Holmes announced they would be arrested.

The activists have since been released but their video cameras were not returned to them along with the rest of their personal property. Short of some "accidental" erasure, though, eventually the videos will come out and we'll discover whose version of events is closer to reality: APD's press statement or the witnesses in the videos linked above, whose accounts jibe with the press release that Buehler complied with commands to back away.

Ironically, just three days prior Austin PD had backed off the notion of requiring citizens shooting video of police to stay 50-60 feet away from them. (See prior Grits coverage.) That's not too surprising, since the whole idea was surpassing stupid to begin with, but the activists' arrest almost immediately transformed APD's backtracking into a pyrrhic victory. Reported the Austin Statesman ("Police: No distance restrictions on where police can film officers," Sept. 18):

Austin police officials now say they won't ask members of the public who film officers to stay 50 to 60 feet away from them as indicated in an August news conference after the arrest of a local activist.

Assistant Police Chief Sean Mannix said he believes it would be "arbitrary" to assign a certain distance between officers and people who might be filming them, as well as difficult to enforce.

"I don't think there's a practical way of doing that," Mannix said. "There is no magic number of feet. The officer is going to make a determination of how much of a buffer zone they're going to need to keep themselves safe, and they'll communicate that to folks at the time."

Mannix's statements represent a change in direction from comments police officials made last month, after Austin activist Antonio Buehler was charged with interference with public duties when police said his actions compromised an arrest they were making downtown.

Judging from this latest episode, APD's decision not to implement a ridiculous "stay 60 feet away" policy is no victory for the copwatchers, since in essence it leaves discretion entirely to each individual cop, who in Buehler's case seems to inexplicably usually be Officer Oborski (though this time Oborski had the sense to get others to do his dirty work).

It's clearly time for Austin PD to enact a formal policy regarding citizen filming of police. They could do far worse than to model it on the one enacted in by the Metropolitan Police Department in Washington D.C. this summer. According to that remarkably reasonable policy (pdf), "If a person is photographing or recording police activity from a position that impedes or interferes with the safety of members [read: officers] or their ability to perform their duties, a member may direct the person to move to a position that will not interfere." However, "A person’s recording of members’ activity from a safe distance, and absent any attendant action that obstructs the activity or threatens the safety of the member(s), does not constitute interference," which likely would have protected Mr. Buehler in this latest incident. Neither the police statement to the press nor witness accounts claimed Buehler "interfere[d] with the safety of [police] or their ability to perform their duties." APD only claimed (contrary to the witness accounts) that Buehler went "where the officer didn’t want him." In D.C., that wouldn't be enough to arrest him unless more was going on than filming.

Further, the D.C. policy sensibly insists that "The Watch Commander, CID, or other official with supervisory authority over the member, must be present at the scene before a member takes any significant action involving a person’s use of a recording device. This includes warrantless search or seizure of a camera or recording device, or an arrest." Austin police should implement the same restriction, and eliminate field officers' discretion to make such arrests unless exigent circumstances exist (which are also carefully defined in the D.C. policy).

Given the proliferation of cameras in cell phones, this issue will continue to come up, with or without the Peaceful Streets Project. It's time for Austin PD to tell the public under what circumstances they will arrest people for filming of their activities. Just declaring officers can arrest someone for being "where the officer didn’t want him" affords too much discretion, inviting abuse and public distrust.

RELATED: Police v. cameras in public spaces: A recurring conflict.

MORE: A commenter supplied a link to an unedited video of the incident. Starting at about the 5:30 mark, you can see Buehler's arrest in the background (he's wearing white pants) and the cop walking him directly toward the DWI stop. I lost count because the video doesn't show his legs once they get close to the woman taking the field sobriety test, but Buehler was perhaps 25- 30 steps away from the DWI stop. How in heaven's name is that interfering with public duties?

AND MORE: See additional commentary from Pixiq: The Photo World in Focus, which includes a link to this training bulletin (pdf) advising Austin police on when they may arrest citizens filming police. Below the jump, see a Peaceful Streets Project press release issued today (see related Statesman coverage) quoting a statement the National Press Photographers Association that criticizes APD's policy as too broad.

Liveblogging Texas Tribune Festival Law and Order track: Is more spending really the only solution to everything?

Texas Tribune reporters yesterday liveblogged their Law and Order track at their all-day "festival." See their blow by blow account here. Go to their main page for similar accounts from sessions on other issues.

MORE THOUGHTS: I took quite a few notes myself and may have more to say on some of the topics covered, but one recurring theme throughout the day - especially from the institutional players represented on the panels - was that the Legislature and local government should spend much more money on criminal justice: On forensic science. On prosecutors' offices. On indigent defense. On mental health services. On alternatives to incarceration. On juvenile probation. On state oversight of probation. On reentry services following prison and jail stints. You name it, more spending seemingly was the solution.

That's all well and good, but the problem is - given the fiscal conservative predilections of the incoming Legislature and the budget crisis spawned by the Lege underfunding major budget items during the last one (Medicaid funding, for example, will run out early next year, long before the fiscal year ends) - throwing massive sums at our already sprawling system isn't really a viable long-term strategy.

Very seldom throughout the day were concrete suggestions made that had a remote chance of reducing costs, and then only in passing. The opinion leaders being questioned did not seem to have given much consideration to how to scale back the system to reduce its volume and expense.

One rare exception came in the panel on the coming legislative session. State Rep. Paul Workman, who is on the House Corrections Committee, mentioned he is interested in scaling back "overcriminalization," but offered no specifics. And Sen. Joan Huffman suggested that money can be saved in the out years if the state invests now in community corrections and mental health services. The Trib liveblog paraphrased her stance thusly: "Huffman said she's about punishing those who are bad and treating those who can be treated in a smarter way while at the same time saving some money."

So essentially, even the suggestions for "saving" money were couched as calls for spending more. The only exception among the politicians was Harris County DA Pat Lykos, who pointed out that the county jail population declined after she stopped charging crack paraphernalia cases as state jail felonies unless there was enough of the controlled substance available for the defense to re-test. Of course, her likely successor at that job has said he would reverse the policy.

Responding to an audience question, juvenile justice panelists briefly agreed that money could be saved by reducing police presence at schools (where more than 300,000 Class C tickets are issued by officers each year, it was estimated), but they all immediately dismissed the idea as politically not viable.

Surprisingly, the main person on the stage at yesterday's Law and Order track who suggested big-picture policy changes that would actually reduce corrections spending was, oddly enough, Rusty Hardin. He was brought in mostly to discuss his role as a special prosecutor in the Michael Morton court of inquiry and his representation of Roger Clemens against allegations of lying to Congress about steroids. But toward the end of his one-on-one interview with Trib publisher Evan Smith, Hardin opined that the pendelum had swung far too greatly toward the harsher end of the spectrum. He recounted that 20+ years ago he'd created a political action committee to elect less lenient judges but now felt the system had gone too far in the other direction

Hardin declared unequivocally that today's prison "sentences are too long," and stated flatly, "I don't believe in life without parole." Liveblogged Brandi Grissom:

Life without parole, he says, is an easy out instead of making the hard decision.

“Warehouseing people for all their natural life with no hope is a horrible, horrible thing to do,” he said.

Hardin said shorter sentences give offenders "hope" and prevent them from giving up on their future, offering a greater possibility they'll successfully reintegrate with society on release. He said he's particularly bothered by long sentences for juveniles. And he lamented the rise of pretrial detention as de facto pre-adjudication punishment. In Harris County, he noted, the system has turned the presumption of innocence on its head to where now there's essentially a "presumption of guilt." People are held in jail too long pretrial because courts are clogged, and often the conditions imposed by judges as part of pretrial release are so onerous that the person may as well have been convicted.

Hardin's comments were framed not around fiscal questions but underlying principles of justice. However, more than any of the politicians or policy wonks interviewed before him, in his comments one saw the outlines of a justice system that might actually be cheaper to operate. (Keep in mind state corrections spending grew 274% more than inflation and population growth over the last three decades, with local costs similarly skyrocketing in most jurisdictions.) Reducing sentences reduces cost to prisons. Reducing pretrial detention lowers jail expenditures.

This blog has repeated many times that there are ways to reduce criminal justice costs by reducing volume: Lowering drug penalties by one punishment category, for example. Indexing theft categories to inflation. Reducing long sentence lengths, as Hardin suggests, and allowing inmates to earn their freedom through good behavior. Utilizing medical parole for sick, elderly inmates. Eliminating politicized expenditures with little public safety benefit like fusion centers, border security grants and military-style equipment. Ending local police subsidies to burglar alarm companies by requiring verified response. Hardly any of those questions were even hinted at yesterday outside Hardin's offhand remarks.

There are ways to reduce criminal justice spending while keeping crime rates low, and yes, some of them require state investment in long-neglected priorities like strengthening probation and upgrading mental health services. But judging from yesterday's event, opinion leaders seem as yet unready to grapple with bigger systemic changes to rein in the corrections spending behemoth Texas has created.

Law enforcement coming to grips with new limits on DPS crime lab services

The Amarillo Globe News has more coverage of a sleeper issue that I'm surprised hasn't received more attention: DPS' recent decision to limit certain types of testing at their crime labs to reduce backlog volumes. Reported Aziza Musa ("DPS cuts evidence tests; changes could reduce convictions, DA says," Sept. 22):

The agency plans to implement the measure until labs can return results within 30 days, DPS spokesman Tom Vinger said.

But Farren said he anticipates demand will continue to grow, and forensic scientists won’t be able to keep up.

It’s a trend [Randall County DA James] Farren said he’s seen before.

In the late 1980s and early 1990s, law enforcement agencies submitted all forensic evidence to FBI crime labs, causing backlogs and long delays, he said.

That’s when law enforcement agencies turned to local and state labs.

“And it took a while, but we’ve reached the same place,” he said.

In addition to blood alcohol and controlled substance testing, DPS also has restricted the amount of DNA testing it will perform, the Corpus Christi Caller Times had earlier reported, allowing only "only two DNA tests for each burglary offense and 10 for each homicide."

See earlier Grits coverage of the move, where I suggested that eventually DPS will be forced to shift to a fee for service model instead of providing "free" services to agencies that don't have their own crime labs. For many years the criminal justice system has operated as though money is no object, but that approach was never sustainable in the long term. DPS has overseen a massive recent expansion of crime lab capacity, but it's still insufficient to handle the volume of evidence sent to them. Even if the Lege gave them more money, it's doubtful they'll have resources to keep up with demand for crime lab services at the rates they've been rising.

Harris County hires new interim probation director

In the wake of the resignation of the Harris County adult probation director in the wake of a drug testing scandal, a new interim director has been hired. The Houston Chronicle has a brief profile.

Tattoo You: State faces rising costs from Hep C treatment

The Texas Tribune yesterday had a story on the rising cost of treating Hepatitis C in prison due to changing standards of care surrounding the disease. Reported Brandi Grissom:

Prison health officials estimate that as many as 50,000 of the state’s more than 150,000 inmates could be infected with hepatitis C. The cost to treat Texas inmates with hepatitis C is expected to soar by as much as 380 percent next year, a result of the growing prevalence of the disease among inmates and a more effective, but more expensive, treatment protocol. Legislators, already facing a strained budget, will have to find millions more dollars to pay for this care.

Not all inmates are tested for hepatitis C when they enter the prison system. They are tested if they have other clinical indicators, like HIV or a history of intravenous drug use. In a 2007 report, health providers for the Texas Department of Criminal Justice said they had identified and were managing care for about 20,000 inmates with hepatitis C.

Dr. Stephanie Zepeda, the director of pharmacy services for University of Texas Medical Branch Correctional Managed Care, which oversees treatment of inmates, said she provided medication therapy for about 400 hepatitis C patients per month, at a cost to the state of about $2.8 million per year. Not all patients with the disease receive the medication, and the therapy can last from three months to a year.

The current protocol is composed of two drugs, and its cure rate is about 40 percent, Zepeda said. But new medical guidelines call for the use of a third medication, which can be one of two different drugs. One of them would increase the cost of hepatitis C treatment in prisons to more than $8 million a year, the other to more than $13 million, Zepeda said.

Zepeda said that adding a third drug raised the cure rate to 70 percent. But the drugs are not only expensive, they are also complicated to administer.

“It’s great from a humanistic standpoint,” Zepeda said. “But it’s, practically, a challenge for the correctional system.”

The new drugs must be administered precisely every eight hours. They must be taken with food, and patients risk developing a resistance to the therapy if they miss doses. In prison, where even small diversions from the regimented schedule require additional work for guards, and where inmates frequently move between units, ensuring that the expensive medications are given correctly could be problematic, Zepeda said.

“It just takes a tremendous amount of coordination to do it right and to do it well,” she said.

Perhaps the biggest source of in-prison transmission of Hep C is unsterilized tattooing. For a while, Canada experimented with placing tattoo parlors in prison, with mixed results (it was abandoned out of an ideological shift in government, not because of problems with the program). It turned out some prisoners wouldn't use the program (which obviously wouldn't do gang tats) and more importantly, they discovered most prisoners acquiring Hep C had done so in the free world, either in regular, licensed tattoo parlors, some of which pose a number of underpublicized health risks, or via IV drug use.

In any event, Texas is unlikely to install tattoo parlors in prison anytime soon, and the GOP champion for free-world needle exchange in the Legislature abandoned the idea after the Bexar District Attorney threatened to prosecute those participating in a legislatively approved pilot. So, since the state appears unlikely to embrace preventive tactics anytime soon, the question remains: Will new, more effective Hep C treatments be deemed medically necessary and thus required under prison medical protocols? If so, it's yet another factor boosting costs for prison healthcare, which the Lege last session underfunded in the budget by nine figures. And since Texas policy toward most prisoners on Hep C has been "don't ask, don't treat," if they ever actually began testing everyone for the disease, those costs would go even higher.

Austin police chief wants homeless services out of his backyard

This suggestion is so absurdly misguided and ill-considered that it scarcely merits comment, but Rob Patterson at the Austin Post informs us that:

Police Chief Art Acevedo feels that Austin’s homeless and such organizations as Salvation Army, Caritas and the Austin Resource Center for the Homeless that provide them with shelter and services should get out of downtown and move elsewhere. And gets needlessly sarcastic about their presence in the center city entertainment district in an obviously uninformed statement reported by Fox News 7.

"Let's put Caritas, let's put the ARCH, let's put the Salvation Army right adjacent to this huge district. It has beer readily available and booze readily available it's probably not a good mixture."

He does make a valid point that the homeless distract police from addressing other downtown crimes. But just because he says they should go doesn’t mean everyone should all salute and say, “Yes sir!”

It's one thing to say homeless service organizations should move somewhere else. But its not a serious suggestion until the chief informs us a) where he thinks they should move and b) by what authority he would compel them to do so. Past efforts to provide services elsewhere foundered when they ran up against inevitable NIMBYism. Will Acevedo now lead the charge to beat back NIMBY efforts to thwart relocating such facilities or pander to neighborhood interests who don't want them there? My money's on the latter.

A few years back before Acevedo came to Austin, a national advocacy group ranked Austin one of the "meanest" cities in America toward the homeless, with a spokesman declaring,"Austin basically made the list because there has been sort of a pattern of police harassment, harassing homeless people in the community." Acevedo's most recent comments perpetuate that perception.

Fusion centers' lameness thus far trumps potential civil liberties threats

The Constitution Project last week issued a document titled "Recommendations for Fusion Centers" (pdf) that merits readers attention. For those unfamiliar with them, "fusion centers" are a post 9/11 intelligence sharing concept operated at the state and sometimes local level. Beginning in 2003, federal funding and state-level enthusiasm for homeland security and intelligence sharing spawned "the creation of a network of state and regionally-based fusion centers that share information among law enforcement and some intelligence agencies. Today at least 77 fusion centers are active in the United States." The Constitution Project worried that "fusion centers can also pose serious risks to civil liberties, including rights of free speech, free assembly, freedom of religion, racial and religious equality, privacy, and the right to be free from unnecessary government intrusion," and offered 25 recommendations to improve their functioning. (Go here to listen to an audio recording of a forum held in D.C. accompanying the report's release.)

The report echoes many of the concerns raised by a 2007 report from the ACLU titled, "What's wrong with fusion centers?" (pdf), which was issued at a time when only 40 fusion centers had been established. While the ACLU focused on criticisms of the fusion center concept from a civil liberties perspective, though, the report by the Constitution Project focused more on specific and detailed operational recommendations aimed at cabining information gathered to legitimate law enforcement needs and ensuring it's properly used.

It's a worthy project and I agree with many of their recommendations - particularly the creation of an immutable audit trial for those who access fusion center records, requiring regular audits and purging information that doesn't relate to criminal conduct (particularly often-nebulous "suspicious activity reports" that are received by fusion centers in large volumes), restricting data use to criminal investigations based on, at least, reasonable suspicion, providing redress for identifying and correcting false information maintained by fusion centers, and their cautions against using the data gathered for counterproductive racial and religious profiling or unwarranted political harassment of First-Amendment protected activities.

Some of these issues have arisen in Texas. One example cited was a "February 2009 'Prevention Awareness Bulletin,' circulated by a Texas fusion center, [which] described Muslim lobbying groups as 'providing an environment for terrorist organizations to flourish' and warn[ing] that 'the threats to Texas are significant.' The bulletin called on law enforcement officers to report activities such as Muslim 'hip hop fashion boutiques, hip hop bands, use of online social networks, video sharing networks, chat forums, and blogs.'"

As evidenced by that example (and others in other jurisdictions), the Constitution Project worried that "the definitions of suspicious behavior used by the federal government and police forces are wide-raging and include behavior that may be completely innocuous." They observed that federal statute, "28 CFR Part 23 prohibits state law enforcement agencies that receive federal funding from collecting or maintaining personal information about indivividuals in a criminal intelligence database unless 'there is reasonable suspicion that the individual is involved in criminal conduct and the information is relevant to that criminal conduct or activity'."

That said, I must say I found the analysis a bit tepid, focused more on the micro-issues surrounding fusion centers and in the process offering suggestions that apply not just to fusion centers but to law enforcement intelligence gathering generally. But the report failed to confront what to me is the much larger question confronting policymakers who champion fusion centers: Are they effective? Are they worth the vast amounts being spent on them?

Fusion centers are little more than a law-enforcement fad, and there's little evidence they're providing much bang for the buck.

The report mentioned that between 2004 and 2007 (when far fewer fusion centers were in operation than today),  the Department of Homeland Security "provided $254 million to sate and local governments to support fusion centers. Federal funding accounts for 20 to 30 percent of state fusion center budgets," according to the report. Extrapolating, that means the total amount spent on fusion centers (in local, state and federal dollars) ran somewhere between $846 million and $1.27 billion over that period, and much more since then, since the number of fusion centers has grown from 40 to 77 between 2007 and 2012.

Searching online for evidence that fusion centers actually help solve crimes, one finds very few examples. The Department of Homeland Security has compiled what appears to be a nearly comprehensive list on its website of instances where fusion centers have effectively assisted law enforcement, even in the smallest capacity, in actual criminal cases (a fairly aggressive though not comprehensive Google search by your correspondent discovered only repeats of those cited by DHS). See their list of "Fusion Center Success Stories."

However, with 77 fusion centers active, DHS could only identify 22 "success stories," and reading through the details, in most of those instances the assistance was not particularly critical and law enforcement would have discovered the same leads and information through traditional investigative techniques. The GAO noted in a 2010 report (pdf) that "DHS has not set standard performance measures for the centers." And it shows.

The Constitution Project report (and speakers at their recent forum) assumed that fusion centers have a legitimate and necessary role to play, but I'm increasingly skeptical that's true. Spending on fusion centers has now run well into 10 figures, and those 22 "success stories" represent a pitifully poor return on investment for that level of taxpayer expenditure. So while I'm glad to see the Constitution Project offer detailed operational recommendations to protect privacy and prevent abuse, to me the bigger question is whether the strategy has demonstrated sufficient effectiveness to justify fusion centers' existence in the first place. Certainly if federal funding ran out, I suspect state and local governments would not be able to justify continuing them based on any rational cost-benefit analysis.

Grits understands why ACLU and the Constitution Project would fear civil liberties violations related to fusion centers, and on paper, at least, those concerns are justified. But often on such questions flat-out government incompetence can trump the potential for abuse, and IMO that's what's happened so far with fusion centers. If they were more effective, they could indeed pose a serious civil liberties threat. But from my observation their lameness has thus far outweighed any such dangers, and the bigger question becomes whether their continued existence can be justified at all given the minimal outcomes resulting from such vast expenditures. Based on the evidence available so far, IMO the answer is probably "no."

RELATED: "Fusion centers might be scary if they actually worked." And from the Collin County Observer, "What's wrong with the North Texas Fusion Center?"

Probation departments serve too 'many masters,' but Harris judges mainly responsible for UA mess

In the wake of a scandal over false positives in urinalysis tests that rocked the Harris County adult probation department, spurring the resignation of its director and other top administrators, the Houston Chronicle published a story yesterday titled, "Probation department a no-man's land when it comes to oversight," which included this quote from your correspondent:

Scott Henson, a criminal justice activist and blogger who works with the Innocence Project of Texas, said the oversight structure for probation departments statewide is "incredibly weak."

"The judges are supposed to provide oversight, TDCJ is supposed to provide oversight, but, in practice, none of it is very effective or consistent, and the probation directors are sort of left out there on their own," Henson said. "Everybody knows who runs the jail, everybody knows who runs the prison system. When you ask about the probation department, they serve many masters and, simultaneously, none."

That quote accurately reflected my comment, but failed to include another layer to the issue I tried to convey in my conversation with the reporter: The extent to which individual judges - not just in their role as the board of directors of the probation department but in their decisions in cases that come before them - bear the bulk of responsibility for the mess in which Harris County finds itself.

The Chronicle reported that "The judges last week released a statement saying state law limits their role to establishing the department, approving its budget and appointing a director and fiscal officer. Those limits are to shield the judges from lawsuits." But that doesn't relieve them of responsibility.

Judge Michael McSpadden had earlier told a local TV station that "When you're overwhelmed, what you do is go to the judges is [sic] say don't make the requirements in every single case, we are overwhelmed. We never heard that." But as I'd described previously on this blog, in 2005 a consultant's evaluation (reported here on Grits) told judges that requiring urinalysis in so many cases was consuming too much staff time and causing 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. In other words, judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem.

So while I agree that, in general, oversight of probation departments is fragmented and incoherent, that doesn't absolve Harris County judges from responsibility for this debacle. The county paid good money for consultants to tell them that overuse of urinalysis in the name of being tuff on crime was overwhelming the system, and they just kept doing it. As a consequence, the county has had to stop relying on the probation department's drug test results entirely until the issues can be resolved - a situation made more difficult by the untenable leadership vacuum at the top of the agency.

It's true the probation department serves too "many masters." But in the end, it's judges who bear most of the responsibility for letting tuff-on-crime politics subsume their good judgment when it comes to the volume of UAs swamping the department's ability to effectively oversee them.

HPD cops stay on force after bilking city for nearly $1 million in overtime scheme

In a story out today titled "Four suspended HPD officers used ticket scheme to earn overtime pay," the Houston Chronicle reported:

Four veteran Houston police officers who collected nearly $1 million in overtime pay combined since 2008 were recently suspended for listing one another as witnesses on traffic tickets to help themselves get overtime for testifying in court, according to records obtained Wednesday.

From 2008 to the present, the four officers who specialize in writing tickets together were paid $943,000 in overtime, city payroll records show.

The punishments handed down Sept. 4 by Police Chief Charles McClelland range from 20 to 45 days off without pay, concluding a lengthy investigation by HPD internal affairs triggered by tickets issued in April 2011.

My question, unanswered in the story: Were they required to pay back the unearned overtime? If not, why not? Given how much money they took in through this scheme, these unpaid vacations amount to a slap on the wrist, at best.

Further, according to the Chronicle, "In one stop, an officer drove himself to the city jail where a suspect had already been taken, but listed himself as a witness to one traffic violation he did not observe, his disciplinary record noted." So where are the criminal charges for falsifying a government document, or perhaps even fraud?

A Chronicle commenter pointed out that, "Anybody else steals even one tenth that amount of money gets a lengthy jail sentence and is labeled a thief and felon for life." Another argued that, "If this happened in the private sector these guys would've been canned, had to repay the money, and possibly face fraud charges." Those seem like fair criticisms to me.

New report criticizes bail industry's parasitic relation to justice system

The Justice Policy Institute has issued a new report (pdf) critiquing the bail bond industry titled "For Better or For Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice." Commercial bail has been outlawed in most of the world as well as four American states - the only other nation that relies on commercial bail bondsmen is the Philippines - and this report makes a good case why. Issuing $14 billion in bonds per year and "Backed by multibillion dollar insurance giants, the for-profit bail bonding industry maintains its hold in the pretrial system through political influence," according to the report.

"The bail industry argues that taxpayers pay for pretrial services,," noted JPI, "whereas bail bonding is 'free.'" But the group argues that, "This ignores a number of collateral costs, both to taxpayers and to communities." Those costs including higher incarceration expenses for county jails and the cost to defendants' families, an important factor which is seldom considered in public policy debates. "In the best case scenario, the person and their family have less to spend on food, clothing and other goods and services that they would have bought in the community." In the worst-case scenario, a family member who did not commit any crime may lose their house thanks to an irresponsible relative.

Further, unlike surety bonds which release defendants solely based on ability to pay, pretrial services perform both risk and needs assessments and may facilitate treatment for defendants with addiction problems which improve overall public safety outcomes. "By assessing drug dependency and getting people started on treatment pretrial, PTS can save taxpayers money and reduce victimization that results from offenses committed to get money for drugs. Additionally, pretrial drug treatment may influence the court’s trial decision favorably by demonstrating a person’s willingness to address underlying health problems and take accountability for their actions."

Not only that, when defendants abscond the the state frequently never sees the forfeiture money: "courts seldom actually make bondsmen pay if the person they’ve bonded fails to appear in court. Forfeiture rules are, with the help of the industry’s political power, written to give the bail agent nearly endless opportunities to avoid paying forfeitures and make the process labor intensive and complex for the courts." Indeed:

The process can be burdensome enough to actually discourage jurisdictions from pursuing forfeiture collection altogether leading to situations where millions are owed. Following are examples of just a few recent cases where a lack of forfeiture collection has been discovered:

• California — estimated $150 million owed
• New Jersey—more than $100 million owed
• Hawai’i — more than $9 million owed
• New York City — more than $2 million owed
• Harris County, Texas — $26 million owed
• Tarrant County, Texas — $73 million owed
• Dallas County, Texas — $35 million owed

Bondsmen in these areas and around the country are aware of loopholes and collection laxity and many have not paid a forfeiture in years, reducing their financial risk to zero. As noted earlier, even when they are subject to forfeiture, bail bondsmen pass this cost on to those who paid the initial bond, with additional costs added on.

One section of the report focuses on radical changes to the system of pretrial release in Harris County, where "From 1994 to 2004 the percent of people in Harris Co., TX on pretrial supervision required to post a bond increased from (less than) 3% to (greater than) 60%." The number of misdemeanants who were required to post bail increased an astonishing 30,100% over that period! (See prior Grits coverage of this phenomenon.)

To this day, misdemeanor defendants in Harris County are routinely locked up pending trial if they can't make bail. As Grits reported recently, "According to the Pretrial Services division's annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail [in 2011]. 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."

Judges in Harris were criticized particularly for increasing use of surety bonds while simultaneously imposing bail conditions (including urinalysis, which has generated its own problems) that require monitoring of surety bail clients by the county Pretrial Services division. "Since the early 1990s," reported JPI, "the agency has also been asked by some judges, in both the District Courts and the County Courts, to provide supervision for some people released on surety bail with special conditions that must be monitored."

Another section of the report focuses on the political influence of the bail bond industry, documenting large campaign contributions from the industry to key elected officials. From 2002 to 2011, Texas saw the second largest amount of bail-bondsmen contributions to elected officials, topping $400,000. In particular, three Texas legislators - state Senators John Whimtire and Juan "Chuy" Hinojosa, along with state Rep. Allen Fletcher - between them received $102,766 over that period.

In 2011, the report noted, Sen. Whitmire filed legislation that would have eliminated "deposit bail" in Texas counties, which according to the bill analysis "is when a defendant pays only a small percentage of the face amount of a bond in exchange for his release" to the county instead of a commercial bail bondsman. "The purpose of this bill [was] to discontinue the use of deposit bonds in the state of Texas," said the bill analysis, though thankfully it failed in the House after passing out of the Senate. Also last year, Rep. Fletcher filed legislation which would "require a judge or magistrate in whose court a criminal action is pending to discharge a surety's liability on a bail bond" after five years," essentially letting the bail bondmen off the hook. That bill made it out of committee but never made it to a house floor vote.

Among jurisdictions which have outlawed commercial bail, Kentucky (of all places) is frequently cited as offering perhaps the best US model. Here's JPI's description of their system:

Kentucky established its PTS (pretrial services) system in 1976 when it made for-profit bail bonding illegal. PTS officers interview arrested persons except those who decline an interview or make bail immediately. Using their recently-validated risk assessment tool the officer then makes a pretrial release recommendation based on the person’s measured risk of failing to appear at trial or being rearrested before trial. As in Multnomah County (OR), there are a range of options available to court officials regarding pretrial release. They may choose ROR, supervised release or set a high bail to reduce the likelihood of release.

In 2011, the Kentucky legislature passed HB 463, a comprehensive criminal justice overhaul bill which mandated changes in the pretrial system, further codifying PTS practice into law. A recent evaluation of outcomes showed positive gains following the implementation of HB 463 policies. Although the state already enjoyed relatively high outcomes in trial appearance and arrest-free pretrial release, the changes improved these even more.

The state saw its Appearance rates rise from 89 percent to 90 percent, post-HB 463. Also, the percentage of those released pretrial who were rearrested before their trial date dropped from nine percent to eight percent in the same period. Kentucky is a prime example of how states can achieve, maintain and improve pretrial outcomes in a system that doesn’t allow for-profit bail bonding.

Notice Kentucky hasn't completely eschewed the use of cash bonds, but (as one of several tools in the toolbox) uses the sort of "deposit bond" method that Sen. Whitmire's bill last year would have made illegal here in Texas.

The JPI report (pdf)) should be required reading for judges and county commissioners, not to mention legislators on committees governing these matters. IMO it's past time for Texas to join Kentucky and most of the rest of the world in outlawing commercial bail, but give the political clout of the industry I don't anticipate that happening anytime soon. Certainly, though, even in the present political climate, it should be possible to bolster county pretrial services agencies and ratchet up efforts to collect forfeitures from surety bond companies when their clients abscond. The bail industry's parasitic relationship to the justice system - socializing risk and privatizing profit - offers little tangible benefit compared to the alternatives embraced by Kentucky, the federal system, and nearly everywhere else on the planet.

Prison cell phones used to rescue guard: What's a prosecutor to do?

In South Carolina, we learn at the TDCAA website, "Inmates used their illegal cellphones to guide rescue of guard held by armed inmates." (See the story here.) Asks John Stride, "Confiscate their phones and give them good time credit? What would you do?" Good question. Leave your answers in the comments.

FBI spending $1 billion on facial recognition technology

The FBI is spending a billion dollars to implement facial recognition software. This writer says "criminals are really the only ones who should fear the facial recognition program at present, because only mug shots from the national criminal FBI database are being used." That seems a bit naive, to me, considering that as soon as the Texas Legislature removed restrictions on biometric data from drivers licenses, including fingerprint data, the state uploaded the information to so-called "fusion centers" to give the feds access. See more on the new facial recognition program from New Scientist, which notes that "it is easier to match up posed images and the FBI has already partnered with issuers of state drivers' licences for photo comparison."

State Auditor critiques TDCJ oversight of diversion grants to local probation departments

The State Auditor has issued a report (pdf) critical of the Texas Department of Criminal Justice's Community Justice Assistance Division (TDCJ-CJAD), which oversees local probation departments. From the summary:

The Division also should improve its financial and program monitoring to ensure that local departments spend funds from Diversion Programs grants as intended. Specifically:

- Financial Monitoring. The Division's financial monitoring of local departments relies primarily on reviewing the reports from audits of financial statements and compliance-related information that external auditors conduct at local departments. However, the Division's guidance and checklist for those audits do not contain sufficient detail. In addition, the Division does not consistently review the reports from those audits in a timely manner or follow up to determine whether local departments correct issues identified in those audits.

- Program Monitoring. The Division conducts its own program monitoring at local departments. Its program monitoring includes reviewing local departments' compliance with special grant conditions. However, the Division does not determine whether local departments' performance output and outcome reports are accurate, and it does not have an adequate risk assessment to select local departments at which to perform program monitoring.

The Division also should improve its monitoring of available funds to ensure that it maximizes the use of Diversion Program grants.

One particular criticism that Grits has heard before from local probation directors found that: “the Division did not inform all local departments of all evaluation criteria before the local departments submitted their community justice plans. The Division’s instructions to the local departments did not specify the evaluation criteria the Division would use. The State of Texas Contract Management Guide states that 'the solicitation document must advise the respondents how a proposal will be evaluated.'”

Another issue was that TDCJ-CJAD cannot confirm the validity of data reported by local probation departments that's used to determine grant funding:

Program output data in the Actual Program Outputs (APO) system and offender-level data in the Intermediate System (ISYS) that the Division uses to make Diversion Program grant funding decisions may not be accurate.

The local departments enter annual performance data into the APO system. They also enter offender-level data into case management systems, and that data is subsequently transmitted to ISYS. The Division also receives data on monthly offender totals from the local departments and enters that data into a database. The Division compiles the data from those three sources and then uses it to score local departments’ community justice plans and make funding decisions. However, data in the APO system and ISYS may not be accurate. For example, the Harris County Community Supervision and Corrections Department explained to auditors that the data on outputs that it submitted to the APO system was inflated, and the Dallas County Community Supervision and Corrections Department could not provide support for totals it had entered into the APO system. Division management also stated that offender-level data in ISYS was not accurate.

If the Division does not ensure that data from those sources is accurate, that increases the risk that funding decisions could be based on inaccurate data and that funding may not meets the needs of local departments.

Yet another criticism highlighted a problem Grits has frequently complained about related to these diversion grants: "The Division does not have a schedule of sanctions that it can impose on local departments for noncompliance with the terms of their Diversion Program grant agreements." The agency promised that by January 2013 it would put in place a "system of graduated sanctions" for non-compliant departments.

To be fair, there's an extent to which TDCJ-CJAD doesn't have the staff or resources to provide more aggressive oversight of diversion grants or local probation departments generally. In an unrelated story out today in the Houston Chronicle, "Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, said funding cuts have hurt the division's ability to prevent a situation like that of Harris County, noting the agency's staff has fallen from 116 in fiscal year 1998 to 74 as of last November."

TDCJ-CJAD agreed with the state auditor's recommendations, most of them predicting compliance on relatively short timelines, but it's questionable whether the division has sufficient resources to effectively implement them all. TDCJ has always treated probation as a red-headed stepchild, even though far more offenders (three times as many, in fact) are supervised on probation than in prison. TDCJ and the Legislature both consistently prioritize keeping prisons open over strengthening community supervision programs, then everyone wonders why CJAD doesn't perform more aggressive monitoring with 36% fewer employees than they had in 1998. So while I agree with much of what's in the auditor's report, I also recognize that TDCJ-CJAD finds itself between a rock and a budgetary hard place. Oversight of diversion programming should improve, but it can scarcely do so if legislative budget writers and TDCJ administrators don't give them the resources to do so.

'What Texas criminal justice reformers could teach the booming immigrant detention system'

The San Antonio Current has a story with the same title as this post about a panel Grits moderated last week at the UT-Austin LBJ School regarding what the federal immigration detention system could learn from pretrial services programs on the criminal justice side. The article by Michael Barajas opened thusly:

GOP State Rep. Jerry Madden took the helm of the House corrections committee in 2005, just in time for a deeply distressing projection: booming incarceration in our notoriously tough-on-crime state meant Texas would need eight new prisons by 2012, at a cost of about $1 billion. Meanwhile, Madden got stern marching orders from then-House Speaker Tom Craddick.

"Don't build new prisons," Madden recalled last week. "They cost too much."

Pulling from both conservative and liberal playbooks, two years later Texas pushed through landmark criminal justice reforms, shuffling funding to drug and DWI courts, curbing the average time for probation (the prison system's top feeder) and ordering the state parole board to raise its parole rate.

This year, the Texas Department of Criminal Justice's population remained 17,000 prisoners below what state officials had projected, and "right-on-crime" advocates say Texas has saved over $2 billion in the process.

Madden touted the lesson to criminal justice experts and immigration reform advocates from across the country that gathered last week. The forum at UT-Austin's LBJ School, sponsored by Human Rights First, was the first of four being held across the country aimed at carrying prison-reduction strategies over into the nation's booming immigrant detention system, which in 2011, according to the latest Office of Immigration Statistics report, jailed about 429,000 immigrants – a new record, even as illegal border crossers have dropped to a 40-year low.

The U.S. immigration detention network "is a fiscal conservative's nightmare, an absolute nightmare," said Texas criminal justice watchdog Scott Henson, who authors the closely-watched blog Grits for Breakfast. Moderating a panel on detention alternatives, Henson said, "I will tell you that the most right-wing county commissioner's court in Texas wouldn't tolerate for a second the kind of dysfunction and inefficiency and waste of millions and millions of dollars that's apparently just accepted in the immigration system."

I've been swamped lately and have not had a chance to write up my notes from the event, so I was pleased to see the coverage. See also a related recent story from the Texas Tribune titled, "Advocacy groups target private prisons for immigrants," and a fact sheet (pdf) distributed at the event detailing immigration detention data in Texas.

Medicaid expansion and addresing severe mental illness through the justice system

A friend forwarded me a handout being circulated at the Harris County Criminal Justice Coordinating Council detailing a pair of studies of "Kendra's Law" out of New York, which provides court-ordered outpatient mental health treatment to a small subset of probationers in the "most desperate need for psychiatric treatment."

According to the handout, "Taken together, the two reports establish that assisted outpatient treatment (“AOT”) drastically reduces hospitalization, homelessness, arrest, and incarceration among people with severe psychiatric disorders, while increasing adherence to treatment and overall quality of life. The independent evaluation further indicates that the effectiveness of Kendra’s Law is not simply a product of systemic service enhancements, but is in part attributable to the value of AOT court orders in motivating treatment compliance." In particular:

During the course of court-ordered treatment, when compared to the three years prior to participation in the program, AOT recipients experienced far fewer negative outcomes. Specifically, the OMH study found that for those in the AOT program:

• 74 percent fewer experienced homelessness;
• 77 percent fewer experienced psychiatric hospitalization;
• 83 percent fewer experienced arrest; and
• 87 percent fewer experienced incarceration.

The related findings of the independent evaluation were also impressive. AOT was found to cut both the likelihood of being arrested over a one-month period and the likelihood of hospital admission over a six-month period by about half (from 3.7 percent to 1.9 percent for arrest, and from 74 percent to 36 percent for hospitalization).

What's more:

Kendra’s Law also resulted in dramatic reductions in the incidence of harmful behaviors. Comparing the experience of AOT recipients over the first six months of AOT to the same period immediately prior to AOT, the OMH study found:

• 55 percent fewer recipients engaged in suicide attempts or physical harm to self;
• 49 percent fewer abused alcohol;
• 48 percent fewer abused drugs;
• 47 percent fewer physically harmed others;
• 46 percent fewer damaged or destroyed property; and
• 43 percent fewer threatened physical harm to others.

Even more encouraging, such improvements were to some extent sustainable beyond the time participants received intensive services. For those who spent more than six months in assisted outpatient treatment, increases in use of medications and reductions in hospitalization "were sustained in the post-AOT period, whether or not intensive services were continued."

Who knows if these outcomes would be replicable in Texas, but these data - particularly the bit about outcomes sustained beyond the probation period - made me think once again about the proposed Medicaid expansion under the federal Affordable Care Act. And since we're on the subject, I should reference a recent report referenced at Sentencing Law and Policy titled, The Affordable Care Act: Implications for Public Safety and Corrections Populations. That analysis noted that "About half of all people in jails and prisons have mental health problems and about 65 percent meet medical criteria for alcohol or other drug abuse and addiction," so clearly Medicaid expansion would impact many people who cycle through the justice system. What's more, "Pre-release and reentry programs might also be better able to connect people who are leaving jail or prison with community-based intervention services," which would definitely have implications for folks mandated to receive intensive services under some version of Kendra's Law (not to mention folks receiving psychiatric meds leaving prisons and jails). The report concluded that:

The ACA is not a panacea – it will not eradicate the societal factors that contribute to excessive poor health among African Americans and other minorities, nor will it eradicate other biases within the criminal justice system that contribute to disparate rates of incarceration. It does, however, pose an opportunity to level at least one dimension of the playing field – access to treatment for mental illness and addiction – two problems that increase the likelihood of arrest and recidivism. In doing so, it may help reduce racial/ethnic disparities in incarceration.

Mandating mental health services for folks with the most severe psychiatric problems could reduce the frequency with which they cycle through the criminal justice system, as is depressingly common, and if the NY results are any indication, could also prevent a good deal of crime and substance abuse among those with the most severe mental health needs. And if Texas were to expand Medicaid eligibility in 2014, it would present an opportunity for financing such services that at the moment seem fiscally out of reach.

And yes, I know Gov. Perry has said he opposes Texas expanding Medicaid eligibility, so maybe such musings are just a pipe dream. But these are recurring dilemmas and it's rare that an opportunity such as the ACA presents itself to plug such gaping holes in the system. In any event, it's worth a discussion.

GEO Group employees implicated in straw purchases of guns for cartel

Good heavens! Reported AP:

Six of the seven Laredo residents who pleaded guilty to illegally buying guns Monday worked at a federal detention center.

Federal prosecutors say the six worked at the Rio Grande Detention Center in Laredo. The center is privately managed by The Geo Group and holds federal detainees awaiting trial for the U.S. Marshals Service. The seventh was a close friend of one of them.

Prosecutors alleged that in 2011, the group acquired 16 guns, mostly semi-automatic rifles of the sort preferred by organized criminal groups in Mexico. In the purchases, they indicated they were buying the guns for their own use. However, they were being paid to buy them for someone else, a tactic known as straw purchases.

Read more here: http://www.sacbee.com/2012/09/10/4806787/6-detention-center-employees-guilty.html#storylink=cpy

'The Unexonerated: Factually Innocent Defendants Who Plead Guilty,'

An academic article titled, "The Unexonerated: Factually Innocent Defendants Who Plead Guilty," explores the seldom acknowledged subset of innocent defendants who enter guilty pleas. Here's the abstract from the paper:

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release. There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead. The second is the current draconian sentencing regime for criminal offenses. And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry. This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.

The case of Kerry Max Cook provides a vivid case study of an episode where "defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release." But less frequently discussed are low-level offenses where defendants enter pleas just to get out of jail and get their cases over with.

That second category of innocence cases - that are typically beyond the current purview of "innocence projects," which because of a lack of resources focus on the most serious cases - is bigger than it should be because of the common practice of requiring bail for low-risk defendants, which puts pressure on them to plea out to gain their release. Last year in Harris County, for example, Grits reported recently that, "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." Those are precisely the categories of offenders who are most likely to include innocent people who enter guilty pleas out of convenience and/or cost-benefit analysis as opposed to criminal culpability.

H/T: CrimProf Blog.

State paying bond interest on privatized forensic psych facility

Not only did the Legislature in 2009 approve a contract with a publc-private psychiatric facility in Montgomery County that the state Department of Health Services never requested (the GEO-Group run facility was tacked on during the budget conference committee), now it turns out the state is paying interest on the construction bonds. The Statesman's Andrea Ball reported ("Is state paying off bonds for county-owned psychiatric hospital?", Sept. 17):

The Department of State Health Services has spent more than $2 million on bond interest for a psychiatric hospital that it doesn't own and that was championed by Senate Finance Chairman Tommy Williams.

But that's not all the state is paying for, said Montgomery County Commissioner Ed Chance, who spearheaded the effort to build the Conroe facility. If its allocations remain the same, State Health Services will eventually pay off the entire $32 million Montgomery County borrowed to finance the hospital, he said.

"If they hadn't agreed to the funding behind it, we wouldn't have built it," Chance said.

The state maintains that it's not covering the total cost of the hospital's construction, just the interest. State Health Services pays the county $15 million a year for psychiatric services for patients accused of crimes and deemed incompetent to stand trial. 

Ball further observed that: "On its face, the state's contract with Montgomery County seems to prohibit any payments on the facility. 'Department funds must not be used to purchase buildings or real property,' the contract states. 'Any costs related to the initial acquisition of buildings or real property are not allowable.'"However, "State Health Services, however, says interest payments are acceptable because they are considered an ongoing expense of the facility." But think about it: If you take out a mortgage to build your house, isn't the interest part of the cost of construction? The same is true for this project.

This project was borne of a backroom deal at the Lege and never fully vetted - certainly in public hearings - before legislative budget writers surprised virtually everyone except insiders with its inclusion in 2009. But this seems too much: Montgomery County and the GEO Group should be required to repay the interest already forked over by state taxpayers and those payments should be ended going forward. Such deals are referred to as "privatization," but in reality only profits are privatized and costs are socialized.

See past, related Grits posts:

• GEO Group secretly snagged forensic psych hospital contract in budget conference committee
• Private psych hospital born of backroom deal fined, investigated
• Rocky start for private forensic psych facility

RELATED: ReportingTexas.com has a preview of a Texas House County Affairs Committee hearing today in Houston related to competency restoration services. Regrettably, since it's not happening at the capitol, the hearing won't be broadcast live online.

Prison ministry fundraising for visitor lodging facility in Gatesville

Cindy Culp at the Waco Tribune Herald had a story picked up by AP about a prison ministry effort by the Central Texas Hospitality House to establish a facility for inmate families visiting prisons in Gatesville - including TDCJ's biggest women's units - for inmate families to stay overnight when visiting relatives in prison. Reported Culp:

Grits attending Texas Tribune festival's Law & Order track

The Texas Tribune is holding its second annual "festival" this weekend (really it seems more like a conference), and their Law and Order track looks excellent. Thanks to the generosity of Grits for Breakfast donors, I signed up to attend and will report back on the highlights, but wanted to let readers know about it in case you're interested.  Just to mention it, I really appreciate those who donate to Grits because, though this blog doesn't pay me a wage, your contributions mean it doesn't cost me money and allow me to attend events like this one. So, gracias.

Special prosecutor needed after murder of Hearne civil rights activist

Photo via The Texas Observer.

Charles Workman, a Baptist minister, former city council member, and civil rights advocate in Hearne, Texas, was mysteriously murdered last week. According to news reports he was shot in the head and his car was found set on fire. Among local legal observers, fears have arisen that the Robertson County District Attorney, John Paschall, won't aggressively pursue the case because Workman had become an influential nemesis of the long-time DA in the aftermath of the infamous Hearne drug stings, which contributed to the ultimate de-funding of Texas system of narcotics task forces statewide, including one led by Paschall. (At the time the episode occurred, Paschall had "final authority for the policies, practices and/or customs of the Task Force," according to the lawsuit [pdf] filed by the ACLU Drug Policy Litigation project, which the county eventually settled.)

The drug sting in Hearne made national headlines, contributed to passage of multiple pieces of state legislation, and was depicted in a feature film, American Violet, directed by Tim Disney. Workman was among the most active Hearne family members fighting both to free those accused by confidential informant Derrick Megress and to get the state to regulate (and eventually abolish) Texas' network of regional narcotics task forces. A 2005 Texas Observer story recounted that, "Charles Workman understands the dynamic of Hearne-style justice as well as anyone. Paschall has a vendetta against his family, he believes, as his stepson and nephew were both arrested in the sting." Paschall tried, and failed, to prosecute Workman on voter-fraud charges soon after the Hearne case ended.

Making matters even more worrisome, Paschall has been accused by a former Hearne police sergeant of interfering with local law enforcement in another murder - that of a man named Hank Johnson, in which Paschall's brother in law was a key suspect. See local TV coverage of that case, including a recording made by the detective in charge accusing Paschall of interfering with the investigation, to which Paschall responded by threatening him.

I haven't seen Charles since 2005 - when we worked together to pass a statute regulating Texas' regional narcotics task forces - and certainly have no knowledge of the circumstances surrounding his death  But I don't trust John Paschall to disinterestedly prosecute, nor to avoid interfering with the investigation. Grits would feel much more comfortable if a special prosecutor were appointed in any criminal proceedings that arise from Workman's death and Paschall stayed completely out of the matter.

Charles Workman's funeral was on Saturday and regrettably I couldn't attend, but Grits extends sincere condolences to his family and friends. From our interactions over about a five year span following the sting in Hearne, I always found him to be a good and honorable man. May he rest in peace.

Recantation boosts possible innocence claims of four SA women

A victim recantation has cast new doubt on the case against four young women accused of child molestation in San Antonio, reported the Express-News, potentially corroborating allegations that forensics presented to jurors in the hot-button case were fundamentally flawed and victim testimony by the children at the time was highly inconsistent. "Very little stayed the same from their first statements to police through the last trial — and these accounts differed from the ones their father and grandmother recalled for authorities," the paper reported after an extensive review of the evidence.

In the interest of full disclosure, this possible innocence case is being handled by attorneys working with my employers at the Innocence Project of Texas, though I don't work on the legal side of the organization and have no knowledge of the cases beyond published reports. Reading the two Express-News articles linked above, though, if the four women really were innocent, it points yet again to how powerful victim testimony can be for jurors in court, frequently overcoming contradictions and evidentiary flaws that in hindsight seem clearly significant. One gets the same sense from DNA exoneration cases where convictions were obtained solely based on eyewitness ID, sometimes contradicting credible alibi testimony. Making the matter especially difficult to untangle, often in false ID cases, the witness themselves believe their testimony is accurate. Similarly, in cases where children have been coached and encouraged in their accusations, it's easy for jurors to believe "something happened" based solely on a child declaring in court, "she did it." Such testimony, though, while persuasive isn't always definitive. In this case, the evidence is mounting that jurors may have made a mistake. Read the extensive Express-News stories here and here and judge for yourself.