Bipartisan medical marijuana bill filed in Texas

Today Austin Democrat Elliot Naishtat filed HB 658, which would provide an affirmative defense to prosecution in state court for patients possessing medical marijuana and for doctors who prescribe it. House Criminal Jurisprudence Committee Chairman Terry Keel, a Republican, also from Austin, will be a joint author.

According to Texans for Medical Marijuana, whose email brings this good news, the bill would:

• Allow a person who is arrested for possession of marijuana, and who has a bona fide medical condition and a recommendation from his or her physician, to present an affirmative defense to his or her prosecution.
• Enable Texas jurors to hear evidence and determine whether or not the individual has a valid medical defense. Presently Texas law does not allow jurors to grant an affirmative defense related to the medical use of marijuana.
• Protect doctors from being investigated solely on the grounds that they discussed marijuana as a treatment option with their patients.
• Allow police and prosecutors to exercise discretion and save our taxpayer money when law enforcement officers come into contact with a legitimate medical marijuana user. According to the Bureau of Justice Statistics, in 2003 there were 57,172 people arrested and prosecuted for possession of marijuana in Texas. If 5% (2,858) of those arrested were medical marijuana users, the taxpayers of Texas wasted an estimated $11.6 million dollars to apprehend them!

Help out cancer patients and doctors, and save $11 million -- how can legislators go wrong? After all, 75% of Texans support the idea. Watch this one closely, folks -- bipartisan backing, strong public support: medical marijuana may be an idea whose time in Texas has come. And the gals over at Texans for Medical Marijuana are doing a first-rate job. If you're a Texan and want to get involved, go here to sign up for their informative emails, or check out their website.

Through the Looking Glass on Searches

Russ raises another scenario I hadn't considered made possible by the Supreme Court's ruling in Caballes, which held that canine sniffs looking for drugs are not a search:

In my home county, the local sheriff there made a big splash by using drug-sniffing dogs to patrol the parking lots of the local shopping mall. When the dog alerted to a car, they noted which car it was, then waited for the car to leave the lot. They'd follow the car and wait for any little traffic violation -- using the turn lane for more than 100 ft, switching lanes without blinking for the mandated five seconds, travelling 2 MPH over the speed limit, a burnt-out license plate light, whatever -- then pull the driver over and pressure them into a search.

That's the nasty conversion of Caballes and Whren, which allows police to conduct "pretext stops," that Alaskablawg predicted -- and it's perfectly legal now. Gross. Meanwhile, Jeralyn emailed to pose a fascinating hypothetical. I gave her an off-the-top-of-the-head best guess, but I'd love to hear more learned thoughts on the matter:

do you think this ruling would apply to a case in which the drug dog alerted on money instead of drugs and there were no drugs in the car, only a large sum of cash. Would it support seizing the money?

The best I can say, I'm afraid, is, "I sure hope not." Today, post-Katz, Whren, Atwater and Caballes, Fourth Amendment interpretation has the quality of Humpty Dumpty's comments in Alice in Wonderland: 'When I use a word, it means exactly what I say it means, no more and no less.' When I say a search, it only means looking for things that are not illegal. Looking for things that are illegal isn't a search. With that kind of Orwellian approach, I simply do not feel able to predict what the Court would do in a particular case -- we've now passed through the looking glass.

Billions for 30 or 40 thousand more prison beds?

Earlier I wrote about how the looming crisis facing Texas prisons has spawned an unexpectedly pragmatic, bipartisan approach to Texas corrections policy as the legislative session begins. Via Ann, yesterday's Austin Statesman offered a great example. Citing the growth in projected prison population that to Grits readers must sound like a broken record, both Rep. Ray Allen, R-Grand Prairie and Senate Criminal Justice Committee Chair John Whitmire, D-Houston, see shifting significant numbers of inmates onto probation as the only option:

"Does it make sense to keep folks in a $40-a-day bed, with no programs and rehabilitation, when we could keep them working and have them do probation for $2 a day?" Whitmire said. "No way."

Allen agrees.

"As a state, we can't afford to do what we've been doing; that's what I draw from the numbers," he said. "We have to build a system with workable alternatives (to prison) on the front end, or we'll have to spend billions of dollars to build another 30,000 or 40,000 prison beds - billions that we don't have."

The paper reports that per-inmate costs have dropped because in 2003 the Legislature slashed drug treatment and prisoner education programs:

"I'm not surprised those costs are down, because we cut the prison system's budget a quarter-billion dollars two years ago," said state Rep. Ray Allen, R-Grand Prairie, chairman of the House Corrections Committee. "We cut programs; we cut costs by renegotiating contracts (with private companies) at lower rates; we cut everything to the bone.

"The system cannot be sustained at this level for long."

Allen was chairman of Corrections at the time this article was published, but the new House Committees have been announced today, and Rep. Allen is the new chairman of the House County Affairs Commitee. He will remain a member of Corrections, which will now be chaired by Rep. Jerry Madden.

All Virginia red light camera studies show increased injury accidents

More bad news for friends of Big Brother -- their precious red light cameras that were supposed to generate so much revenue also turn out to generate more accidents. Via Instapundit, quoting TheNewswpaper.com

A brand new, exhaustive study of all seven Virginia red light camera programs shows an overall increase in injury accidents has occured where the devices are installed. The study was performed by The Virginia Transportation Research Council at the request of the state transportation secretary. The report also notes a fatal flaw in the Virginia's camera law -- motorists can ignore any ticket received in the mail. Only tickets that are personally served matter (the same thing happened in Arizona).

Despite a distinct sympathy in favor of camera enforcement, the researchers found a "definite" increase in rear-end accidents and only a "possible" decrease in angle accidents. Most importantly, the net effect was that more injuries happened after cameras are installed. Camera proponents explain this away by asserting angle accidents are more serious, but this claim has not been scientifically studied according to this report. The rear end collisions caused by the cameras still produce injuries -- the original promise of camera proponents was that they would reduce accidents and injuries, not rearrange them.

This study agrees with long-term findings in Australia and North Carolina.

The New York Times reported similar findings earlier this month. In Texas, the Houston City Council recently voted to install red light cameras at 50 locations citywide and start issuing tickets, but Houston-area legislator Gary Elkins has filed legislation to forbid the practice statewide. Grits posted here about potential privacy concerns with the proliferation of cameras combined with Texas DPS' proposed database of biometric "facial recognition" data.

A new right, or just the right moment?

Doc Berman has questioned whether there might be a "new right" developing in support of drug treatment in lieu of incarceration and other sentencing reforms, noting that Republican senators and Governors have recently adopted such positions, plus a new poll commissioned by FAMM indicating changing public attitudes.

There's evidence of that trend here in Texas, or, more accurately, evidence of a new sense of bipartisanship and pragmatism on the subject in the face of a looming crisis.

In 2003, Republican state Rep. Ray Allen sponsored HB 2668, a new law signed by Governor Rick Perry that mandated treatment not incarceration for first-time low-level drug offenders. Allen was then chairman of the House Corrections Committee, on which he still sits. His primary campaign issues are abortion rights and guns, and he is co-sponsoring a Texas constitutional amendment to define marriage as between a man and a woman. But Governing magazine cited Rep. Allen for his willingness to work with unlikely allies to promote criminal justice reform. Recently he was quoted hoping to spend savings on incarceration to pay for healthcare. (Conflict alert: He was also a campaign client of mine during the last election cycle.)

More church groups are coming around on criminal justice reform. The other day I wrote about Restorative Justice Ministries, a prison ministries network that connects hundreds of churches across the state. A headline in the Huntsville Item featuring that group announced, "State should scrap its current system says local prison ministries official." In it, RJM leader Emmett Solomon argued that "incarceration is being overused in Texas and it is having detrimental results for both families and society."

That's not a traditional Republican message. It's a message that appeals to grass roots religious conservatives, not necessarily economic conservatives. The Lord may "heareth the poor and despiseth not his prisoners," as it says in the Psalms, but typically one can't say that of the Chamber of Commerce. If you want forgiveness and redemption, go to church. A lot of ex-prisoners do.

The other happy development that's bolstered Berman's "new right" in Texas has been that a few key elements from law enforcement, who recognize when something's gone terribly wrong, have been willing to stand up and call for change. I wrote yesterday about Richard Watkins, the retiring warden of the Holliday Unit in Huntsville, whose commitment has always stood out. Former undercover drug task force officer Barbara Markham stood tall to criticize flawed drug interdiction practices in the face of professional backlash, and lent reformers invaluable understanding of how the system works. Plus a lot of good cops and other folks in the justice system are speaking up internally, and trying to do the right thing from the inside.

Back at the Legislature. Texas House Criminal Jurisprudence Committee Chairman Terry Keel is a Republican former sheriff and former assistant district attorney who is a ruthless proponent of the death penalty, and all the trappings. But after the Tulia episode, Keel decided Texas' drug task forces' poor command structure was to blame. Upon studying the situation, the Interim report from his committee headed into the 79th (2005) Legislature recommended abolishing the whole drug task force system. Keel has also filed legislation to force counties to release information about executed search warrants that's supposed to be public.

The reasons for this shift are complex - part pragamatism (full prisons), part ideology (the ascendance of religious conservatives for whom themes of redemption and forgiveness are acceptable), and part politics (the state's largest Latino group, the League of United Latin American Citizens has made sentence restructuring a priority). Throw in a healthy libertarian animosity for Big Brother. Together, they constitute a more diverse and interesting mix than Democratic stereotypes usually allow, even some new opportunities on criminal justice that just weren't there when the Democrats were in power.

Whether they constitute a "new right," it seems that the right people might be in the right place at the right time to make a difference in Texas. They're certainly about to get their chance.

Whaddya have to hide?

Grits reader "Radical Russ" offers his own suggestion for new Fourth Amendment language in the wake of atrocities visited by the U.S. high court upon the downtrodden original. Far superior to my own, I think his suggestion perfectly captures the clear intent of the Supreme majority, who declared this week that a canine sniff is not a "search" because the hound is only searching for illegal things. Russ suggests the Fourth Amendment should henceforth read:

"If you're not doing anything wrong, then you have nothing to hide, do ya, punk?"

And for coming up with the perfect substitute for the Fourth Amendment -- one, I think, inspired by the zeitgeist of our times -- let me reward Russ' "blatant blog whoring" by suggesting that you check out his comments on the Caballes ruling, including plans for a counteroffensive:

I'm getting a bottle of hempseed oil and spraying a little on the trunk lid of every Hummer, Lexus, Jaguar, BMW, and Cadillac I see. Maybe if it's some rich white conservative folks whose civil liberties are getting trampled, we might all get our civil liberties back.

Light blogging today, but check out these folks:

• Doc Berman sees a "new right" in favor of sentencing reform.
• Crime & Federalism has the stick figure art that got elementary kids taken off in handcuffs, and a good post on attorney ethics (Stop your sniggering out there, it's not an oxymoron. Hey, I said stop it!)
• The Texas Civil Rights Project has sued on behalf of high school students beaten up by police in El Paso, and another of their clients, death penalty opponent Dave Atwood, went to jail for five days rather than pay a trespassing fine.
• Howard Bashman points to this Boston Globe article airing criticisms of Alberto Gonzales for hearing cases as a Texas Supreme Court Justice that involved campaign donors. News flash: Texas judges compromised by donor system. Perhaps the next Boston Globe scoop might be: More cattle, boots per capita in Texas than Massachussetts. For the lowdown on who is buying what in the Texas Supreme Court, see Texans for Public Justice's Dollar Docket, which unfortunately has not been updated since the summer.
• Pete Guither has found a law so bad the Justice Department won't defend it.
  
• Talk Left cites Radley Balko, who says if it walks like a duck, it's probably a national ID card.

Bitter Greens

My old college running buddy Tom Philpott, Jr. just launched his own blog, the Bitter Greens Journal, "inspired by your no-nonsense blog," he tells Grits in an email. Another food-named blog inspired by Grits: Outstanding! In college, Tom and I used to co-edit this rag together.

Bitter Greens "will serve as a running critique of industrial agriculture, a clearinghouse for info on sustainable farming, and a working manifesto for a liberation politics based on food." I really like that phrase, "working manifesto"; that's a pretty accurate description for some of Grits postings. Tom did a several-year stint as a financial writer in Mexico City then in New York before moving to North Carolina to launch Maverick Farms to put some of his ideas about agriculture into practice.

For a topic I don't really follow, I must say Tom's first few posts have already piqued my interest. His "Cheap labor, cheap food, fat profits" gives the goods from a Human Rights Watch report on labor and business practices of international food giants. And his post on "The UN and the Genius of Industrial Agriculture" links to an article by UT-Austin economist Harry Cleaver, a teacher we both had back in the day. Tom's late father, Tom Philpott, Sr., was a much-beloved UT-Austin history professor.

This man is a writer's writer, folks, so if you care at all about the topic, bookmark the site and keep checking back with him. Or look for Bitter Greens in Grits' "Friends" column.

The Era of the Pretext Stop Has Begun

AlaskaBlawg connects a few more post-Cabellas dots:

What I have not seen anybody say yet, and if it is out there, feel free to point me to the site or link, is how chilling this decision is when combined with Whren. For those who do not know, in Whren v. US, the Supreme Court held that the subjective intent of a police officer is irrelevant in determining the legality of a traffic stop. So, if a cop wants to stop you because you fit a 'drug courier profile', the cop just has to follow you long enough to make a minor traffic stop and then pull you over. With Cabellas, that cop can have a drug dog in his car and there is nothing you can do about it constitutionally.

Thank you. You heard it here first: We are now in the era of the pretext stop. After Whren and Caballes, traffic enforcement will, over time, have less and less to do with ensuring traffic safety and more with getting around the Fourth Amendment. AlaskaBlawg hardly describes the half of it -- more and more typical will be the following scenario.

Officer: M'am, can I search your car?

Driver: No, not without a warrant.

Officer: Then you're going to have to wait here, m'am while I call in the drug dog.

Driver: And how long is that going to take?

Officer: Oh, twenty or thirty minutes, maybe. Elroy, he and Scooter, that's the dog, he and Scooter are just finishing up at another stop, then I think they've got one more ahead of us.

Driver: I don't have all day to wait here, I have to get back to work.

Officer: Well, you could just give me consent to search, m'am, then you could be on your way.

At that point, how much of that driver's Fourth Amendment rights truly remain?

In Texas and several other states it's even worse after Atwater v. Lago Vista (discussed in the second half of this post). In that case the Supremes ruled that, where state law allows, officers may arrest for fine-only traffic offenses. So in Texas, at least, and for states that have not banned the practice, the conversation might just go like this.

Officer: M'am, can I search your car?

Driver: No, not without a warrant.

Officer: M'am, our drug dog is busy so my only other alternative is to place you under arrest for the offense of failure to signal a lane change, then search the car after we impound it. Is that what you want me to do?

Driver: Of course not! So what choice do I have?

Officer: Well, let me ask you again, m'am, can I have permission to search your car?

Driver: Fine, search the damn car, I have to get back to work.

The Supremes decided that Texas case in January 2001. In response, the Texas Legislature passed legislation that spring banning the practice, but Governor Rick Perry vetoed the bill, dubbed "the soccer mom bill" by the media for Gail Atwater, who was taking her kids home from soccer practice when she was arrested for a seat belt violation. In 2003, the Texas Legislature passed another bill that would have required departments to have written policies at least stating WHEN officers were allowed to arrest for traffic offenses, but Governor Perry vetoed that, too. So officers retain that leverage, and Gov. Perry has promised political backers he'll continue to insist they have that discretion.

I'm sorry, folks, but the Fourth Amendment has vanished in America when you're in a vehicle after this ruling. In Texas, that happened already after Atwater, so this just deep sixed the pesky rascal for the rest of the nation. A certain percentage of traffic enforcement will always be related to actual traffic safety concerns, I hope. But increasingly, traffic stops will become the pretext for all sorts of stuff that police can't get away with elsewhere.

UPDATE: Skelly says he's gotten searches thrown out of Idaho state court when the officer made a driver wait for a dog, and links to the ruling. Texas will take a couple of those appellate judges to go, please, or better, we've got some to swap! He thinks we'll just see more dogs in police cars doing traffic interdiction, until one day we won't remember when every cop didn't have a dog. (That's an ugly thought. I guess they're less lethal than Tasers.)

I'm not an attorney and at the moment can't quote the state case law, but directing ACLU of Texas' Police Accountability Project I've heard plenty of anecdotal evidence on this wait-for-the-dogs question, enough to make me confident the practice goes on here. At a series of town hall meetings across Texas last year on racial profiling sponsored by the Texas Criminal Justice Coalition, NAACP, ACLU and LULAC, the complaint was raised frequently enough to constitute a pattern. For a detailed analysis of Texas highway drug interdiction practices, see the report I authored for ACLU of Texas, Flawed Enforcement: Why drug task force highway interdiction violates rights, wastes tax dollars, and fails to limit the availability of drugs in Texas (pdf)

Canada takes hard look at innocence cases

At least somebody's thinking hard about how to prevent convictions of innocent people. Via CrimProf blog, the Canadian government just released a major report on "miscarriages of justice," with a chapter apiece on the major causes of convicting innocent people worldwide. "What is startling," the report found, "is that some problems, themes and mistakes arise time and time again, regardless of where the miscarriage of justice took place." According to the report, those are:

• tunnel vision
• mistaken eyewitness identification and testimony
• false confessions
• in-custody informers
• DNA evidence
• forensic evidence and expert testimony
• education

That's nearly precisely the set of issues swirling about numerous false conviction cases in Texas, according to testimony at a recent Senate Criminal Justice Committee hearing in Houston. The Canadian report is here, news coverage is here. Also, see ACLU of Texas' suggestions to the Senate committee for fixing some of these problems, and a House Research Organization report (pdf) on possible reforms in the area of forensic science, which has contributed to false convictions in several Texas cases.

No Paupers, Idiots or Lunatics? Who's Left?

A visit to the website of Texas District and County Attorneys Association finds them wistfully recalling days gone by when Texas more aggressively restricted voting rights. The Law Quiz posted there poses the question, "What four groups does the Texas Constitution keep from voting?" The answer:

Article VI Section 1 of the Texas Constitution:

1) Persons under 21 years of age.
2) Idiots & Lunatics.
3) All paupers supported by any county.
4) All persons convicted of any felony.

Of course, the voting age today is 18. Felons in Texas can vote once they're off paper (off probation or parole), or else one in 11 adults would be disenfranchised. I'm pretty sure the equal protection clause in the 14th Amendment took care of that paupers stuff, or else poor and elderly Medicaid or TANF recipients couldn't vote. And of course, banning "Idiots and Lunatics" would pretty much whittle the rest of the electorate down to roughly a half dozen or so. That Texas Constitution is a really meaningful document, huh? Still, Texas prosecutors can dream, can't they?

Perhaps it's irony day over at the Texas District Attorneys Association, because their website also includes one of my favorite quotations:

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

--Anatole France

In prosecutors' news of interest is an item about marijuana possession charges brought against a member of the Grammy-nominated band Los Lonely Boys in San Angelo. The media there is airing allegations of date rape, but no such charges have been filed, and investigators are awaiting the analysis of evidence sent to one of those highly reliable forensic labs.

Another prosecutors' news item: In Galveston, the county built a new jail, but instead of closing the old one will likely lease it out to a private prison company, which has promised to house a class of prisoners who will have "fewer visitors." I'll bet these are out of state felons, so the "fewer visitors" notion is because they'll be housed so far away from their families, no one can come see them. But to the private prison companies and the county, that's actually a selling point.

A Fourth Amendment for the 21st Century

It's been a long damn time since I woke up in the middle of the night fighting mad about a stupid Supreme Court decision, but Illinois v. Caballes, did it for me. Yesterday's ruling found that police use of drug sniffing dogs at traffic stops doesn't constitute a search under the Fourth Amendment.

Why in heaven's name do we bother keeping that silly Fourth Amendment in the Constitution anyway? After yesterday, perhaps it's time to take the old nag out back and shoot it like a plowhorse with a broken leg?

Worse, some of the knowledgable folks who've studied Caballes already say it's an ill-conceived and poorly written piece of junk. That's just great. If you're going to toss out important chunks of the Constitution, it's definitely best to hand the assignment off to some punk law clerk without giving it a hard edit. I've read brilliant prose in Justice Stevens' opinions before, so those accounts make me doubt this one represents his finest hour. Maybe he's too distracted by who's going to succeed Rehnquist.

More analysis later, but for now, since it's obvious that pesky Fourth Amendment was getting in the way of all the important searching the government wants to do, maybe it's just time to flat out revise the thing. In support of the "Wise Nine's" sentiments expressed in Caballes, I took a first stab at some new wording for a 21st Century Fourth Amendment more in keeping with the apparent values of the day. Here's my first effort.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, unless the government is looking for something illegal and publicly taboo.

This version has the merit of simplicity: a simple exception that would include nasty items like drugs, alcohol for the underaged, child porn (or 'possible' child porn), or some other non-Constitutionally protected item like guns. (Oh, wait, that IS constitutionally protected. I'll let somebody else re-write that one.) I thought about making the requirement "illegal or taboo," but realized that, for the search to be acceptable, it would have to be both. One should never make the mistake of thinking that judges are any less politicians than folks who must run for elected office.

My second attempt tries to embody the Supreme Court's newly expressed values in a positive fashion. See what you think:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized if an officer is looking for illegal contraband.

In this version, the violation of our right to be secure from unreasonable searches becomes a pro-active government mandate. Why bother with pretense, you know? (I took out houses for the actual mandate, since the opinion apparently leaves open the possibility that sniffs around houses could be decided differently.) Perhaps in the long run, the new mandate might work to our advantage, since cops at the end of the day are bureaucrats who are as likely to be diligent at that job mandate as they are other bothersome tasks like writing tickets.

Finally, it strikes me that the clear intent of the Supreme majority allows for a plain-language version:

"Quit complaining, Leroy, I'm only looking to see if you did anything wrong. That ain't a search. The Supreme Court said so."

This last possibility, I think, captures the Court's war-is-peace, freedom-is-slavery approach to Fourth Amendment interpretation. For more, read what Arbitrary & Capricious called my "full throated howl of protest" on this subject from yesterday.

UPDATE: The blogosphere appears abuzz with the news, and a mostly negative reaction, though Skelly's right, one shouldn't blame the hounds. Ex Post explores the ruling this morning. The Tao Security Blog wonders about canine false positives. Drug War Rant wonders how many different ways we can kill the 4th Amendment? The Biscuit Report suggests a likely reason for the decision. My free speech expresses disgust. No Capital says "so long probable cause." Reason's Hit and Run suggests a possible tactic drivers might try. A Stitch in Haste says "the total elevation of the sniffing dog above the human being is now nearly complete." Jewish Buddha wonders if this will change dogs' status as man's best friend? In December, SCOTUS blog told us about a Maryland Supreme Court ruling that took the notion farther, declaring that a dog sniff can be used in an apartment without a warrant because it is not technology. Mr. Jerry rightly asks, where will it end? Carrie says in the comments she didn't like it either.

Drug Sense Spoken in Wichita Falls

The discussion about drugs coming out of Wichita Falls last week sounds a little different from Sen. Craig Estes' approach. Speaking to the League of Women Voters, Suzanne Wills of the Drug Policy Forum of Texas told the audience:

The problems come with how the government should deal with drug addicts - do we lock them up or treat them?

Wills said the prevailing attitude is, build more jails and put more people in. That doesn't necessarily work with a meth addict, who comes out of jail sick, angry and ready to find their next hit, she said. It also doesn't work for the nonviolent users, who were never a threat to society.

"Drug treatment is much more effective than prison time," she said.

Meanwhile, an informed source cautioned that special interests who profit from incarceration would try to thwart more sensible policies:

John Hirschi, a retired Texas state representative, said after Wills' presentation that it was hard to get things done in the legislature because of certain lobbyists.

"There were tremendous vested interests in the prisons, and it was extremely hard to pass legislation because of those who profit from the growth of the prison system," Hirschi said.

Via Drug Sense Weekly. The same issue notes that Texas may have to build five new prisons by 2010 if it doesn't change its probation policies.

Treatment not incarceration, for drunks

I've written before about the need for more state drug treatment dollars, but DUI Blog reminds us that treatment for alcohol addiction also works better than incarceration to stop drunk driving.

Dog sniffs not a search; what next?

Here's the money quote from today's 6-2 U.S. Supreme Court decision that says a dog sniff at a traffic stop is not a search:

"A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." (SCOTUS Blog)

That's a bunch of hoakum. All searches are looking for illegal items, so the Supreme Court majority's distinction is specious. The question should be whether the dog is a tool for conducting searches for contraband, or somehow just an extension of the officer. (As an aside, the fiction that the dog is itself an "officer" carries too much weight. Swear the hound in, then, why don't you? Place your left paw on the Bible and raise your right paw to God ...)

South Texas Law Professor Dru Stevenson, commenting at TalkLeft, offered the tired, "if-you-don't-have-anything-to-hide" response:

I don't carry drugs in my car, so dog sniffs around my parked vehicle do not pose much of a threat to me. It's hard for many of us to get passionate about protecting people's liberty to pursue illegal activities. And if none of us really have drugs in our trunks, it is even LESS likely that the police would bother expending resources on dog-sniff traffic stops.

So Professor Stevenson is alright with being searched by dogs because he thinks they won't find anything. But that doesn't mean what the dog is doing isn't a search! Dogs can now be trained to sense medical information with a "sniff," so once the government can articulate some public need for gathering that information, will that not be a search, either? His position also doesn't address the functional issue. Typically there's at most one dog per traffic unit, so traffic officers only call for the K-9 unit if the driver refuses to consent to a search. Should it be legal for an officer to make the driver wait for the K-9 unit if there is no other reason to believe they're violating the law. I don't think so, but this opinion seems to leave that common tactic wide open.

CrimProf blog has more on the precedents behind the decision, while Orin Kerr at the Volokh Conspiracy helpfully explains the court's reality-based reasoning: You see, the

"'reasonable expectation of privacy' is not the same as the expectation of privacy of a reasonable person, but rather is a term of art keyed heavily to property law. Because a person cannot have a property right in narcotics, the thinking goes (whether rightly or wrongly), interfering with his drugs does not infringe a property right and therefore does not constitute a search."

Well I'm glad we got that cleared up. Otherwise I'd have thought a reasonable expectation of privacy meant, you know, a reasonable expectation of privacy. Kerr identifies the fundamental shift in the Court's Fourth Amendment interpretation:

In my view, this is a potentially troubling development. The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasong focus on the nature of the information rather than how the information is obtained, it's no longer so clear.

I'm looking forward to reading the opinion (pdf) and digesting the outcome more, but this is awful news. Between this bad decision and Atwater v. Lago Vista, there may need to be state legislation introduced to restore the Fourth Amendment rights stripped away by the Supremes at traffic stops since the turn of the century. Viva the new federalism, huh?

UPDATE: New 21st Century Fourth Amendment Proposed

Question answered

I've avoided comment on Charles Graner's Abu Ghraib torture case up in Fort Hood because other blogs have done such a good job, and I had little else to add. But I wanted to make sure Grits readers saw this tidbit from the testimony:

Sgt. Joseph Darby ... testified that Spc. Graner had once showed him a digital image of a detainee chained to the wall naked, a puddle beneath his legs.

"Graner told me, 'The Christian in me knows it was wrong, but the corrections officer in me couldn't resist making a man [urinate on] himself.'

Pretty much answers this question, doesn't it?

Where is outcry on sodomy of prisoners?

This grim article in the Dallas News reminds us that not just prisoners but sometimes guards indulge in prison rape, and that the problem is growing, not declining, with reported Texas cases up 160% over four years.

I don't know why Texas, of all places, can't muster the political will to stop the sadistic sexual persecution of prisoners. Where are all the religious conservatives who are opposed to sodomy when you need them?

Howdy

Say hello to Texas Blogs.

Texas prison system loses a good one

Richard Watkins is a special guy. It's a shame he's retiring as warden of the Holliday Unit in the Texas prison system in Huntsville, but after 10 years as warden and 20 overall as a corrections employee, he deserves it. Watkins, who is Huntsville's NAACP branch president, told a reporter from the Huntsville Item he wished he'd worked himself out of a job: "I always hoped we would be able to send so many of these (prisoners) back home that we wouldn't need all these prisons," he said late last week. Watkins told the paper:

"I have a lot of great memories here," he said. "But it is the simple things that matter the most. There have been times when we have been able to help the staff out, but it's the times where we have seen changes in the behavior of some of these inmates.

"These guys are going to go back to our neighborhoods, and we want to facilitate change in their lives so they can go back better than they came in and we tried hard to facilitate that."

Charles Brown, former spokesman for TDCJ and close friend of Watkins, said the retiring warden is "one of the most giving persons I have ever met."

I wish I could tell readers the whole Texas correction system viewed its job that way, but Watkins is a standout. Enjoy your retirement, Richard. Buena suerte, amigo.

Found evidence in Houston too late for 21 dead men

Investigators have found missing evidence from 28 death penalty cases in boxes from the Houston crime lab that were mislabeled and stored. The boxes including missing evidence from about 8,000 Houston cases, total.

Twenty of the men have already been executed, one died on death row of natural causes. The new evidence could affect the cases of up to seven men still on Texas death row. The discovery raises the disturbing possibility that Texas may have executed one or more of these men without defendants' appellate counsel having an opportunity to perform DNA testing or other possibly exonerating scientific work.

Via CrimProf. For more, see ACLU's recommendations on how to fix the crime lab problem, plus Grits coverage of a Senate Criminal Justice Committee meeting on crime labs in Houston this month, and a recent discussion of why accuracy is sometimes optional in forensic science.

Judge Chapman tells Tulia tales

Judge Ron Chapman told his side of the Tulia saga this week to the Kiwanis Club of Cedar Creek Lake. Chapman was the visiting judge who declared that Tom Coleman was "simply not a credible witness under oath," and ordered new trials for the Tulia defendants.

"Are we winning the war on drugs? Hell, no," Chapman said. A bigger problem even than bad cops, he said, is the lack of funds for drug treatment programs, especially in rural counties, and an overreliance on incarceration. Here's the coverage from the Cedar Creek Monitor.

See Grits coverage of Tom Coleman's perjury trial.