Most jurists not equipped to handle addiction, but they should be, says recovery court judge

Folks interested in the day-to-day workings of drug/recovery courts and how judges should approach their job when dealing with addicts should be sure to read Montgomery County District Judge Michael Mayes' article in the most recent issue of In Chambers (p. 4), a publication of the Texas Center for the Judiciary. For starters, I think everyone would be better off if Texas judges up and down the line were taught the humbling lesson that Mayes describes early in the article:

I have ... learned that, as a rule, we Judges have little or no training in the realities of addiction or alcoholism, and yet we are called upon to deal with persons who suffer from such maladies and to decide whether to punish these abusers with prison or try to rehabilitate them through probation. We have little or no background to know the answers to the real issues of addiction but we are empowered to sentence addicts and alcoholics who violate the law. We are robed, no doubt, because others saw in us something special, something that generated hope in the justice system, but we are not educated for the task of handling alcohol and drug abuse.

That's certainly true. Law school barely teaches you what to do in a courtroom, much less how to curb addiction and addictive behavior. Many judges aren't humble enough to admit that they frankly aren't qualified to reform addicts, and thus their decisions don't assist toward that goal. There is indeed a body of knowledge and literature on the subject, and experts exist, Mayes learned, but it's important first to recognize that that's not the pool of people from whom society draws to make the life-changing decisions a judge is empowered to make. Mayes described his own self-education process and recommends a number of resources and methods he relies on.

Equally interesting was Mayes' observation that, once he'd studied and better understood patterns of addictive thinking, he realized the judicial system itself was engaged in precisely the same pathology regarding these offenders. He wrote:

Our judicial system has for years engaged in addictive thinking when dealing with drug offenders. We continue to employ a failed protocol of arrest, probation, violation and ultimately prison because it is easier than the harder work of providing real solutions. It is what has become normal and it makes us feel like we are doing our job, but the fact remains that repeating past errors and expecting different results is symptomatic of addictive thinking. This thinking is a distorted way to address the pandemic of addiction we see in the courts. It provides little or no treatment for the addict, the alcoholic and their families and it provides no preventative solutions for the future victims of those addicts that abuse and injure others. Not finding real solutions is easier than addressing the real issues underlying the addicted defendant’s behavior.

That's as apt a description of why Texas prisons are full of drug offenders as you'll ever read. But Judge Mayes offers a flicker of hope that it doesn't have to be that way. Today he operates three different "recovery courts" in Montgomery County (which is a suburban/rural county outside Houston) and he describes an amazing success rate for those who receive jail time and treatment instead of probation revocation in response to violating probation requirements:

In my experience, less than 10% of inmates that I have jailed for a relapse and with whom we have engaged with therapeutic interventions while in jail ever face a Motion to Revoke. Those that have been revoked were (1) addicts that refused to accept the reality of their addictive thinking, (2) defendants that had absconded and could not convince me that they would not stop running from their distorted thinking, or (3) defendants that stated that probation in our Recovery Courts was "too hard and I had rather just do the time." These failures are few and far between, however, and when in doubt I invariably lean toward treatment and recovery.

Good stuff. I'm glad to see these ideas being kicked around among Texas' judicial set. Maybe those on the bench who agree with Judge Mayes will speak out to support the legislative reforms needed to make this changed approach a statewide reality.

Dissenting 5th Circuit Judge: 'The war on drugs is not an excuse to violate the norms of fair play'

Those who criticize activist judges may want to turn their sights on the Fifth Circuit Court of Appeals after this recent decision in a West Texas case- that is, unless you think judicial activism on behalf of prosecutors should get a free pass.

In any event, you'll seldom read a more scathing dissent charging judicial activism than that in US vs. Cuellar by Circuit Judge Jerry Smith, who invokes Duke prosecutor Mike Nifong's "'win at any cost' mantra" and calls the case an example of "prosecution run amok." Here's the money quote from Smith's dissent:

In sum, the majority finds a way to ensure that Cuellar goes to prison, thereby protecting the Executive Branch's prosecution despite its having charged entirely the wrong statute. Unfortunately, that now-successful effort requires ignoring the statute's context, its title, the legislative history, the rule of lenity, the canon against absurdities, and existing caselaw. I can find no basis for the majority's holding other than the personal legislative preferences of its members. ...... In summary, Humberto Cuellar likely committed a serious violation of the United States Code, but not of the section of which he was convicted. Justice requires that he be tried for a crime of which a reasonable prosecutor can believe he is actually guilty. The war on drugs is not an excuse to violate the norms of fair play and evenhandedness. I call upon the Attorney General to confess error in this case of prosecutorial excess, and I respectfully dissent from the majority's blessing of the government's failure to do justice in this case.

More evidence IMO that the 5th Circuit has become nearly as big an embarrassment as the Texas Court of Criminal Appeals, whick is saying something. Thanks to Dan Kowalski for the heads up.

Graffiti News

The Statesman's Uncovering Mexico blog has some neat pictures up of street graffiti from Mexico City that are worth checking out.

Meanwhile, more graffiti news via Dirty Third Streets about Houston street artist Phillip Perez, aka "Article," suing Houston PD for harassment and wrongful arrest. As Keith Plocek wrote at HouStoned, "After the D.A. saw the video of the arrest, he dropped all the criminal charges against Perez, which doesn’t speak well of the actions of the arresting officers." The video is available on YouTube.

Carl Reynolds: Good conduct time, parole, give prisoners behavor incentives

Some of the less popular aspects of the criminal justice system can be pretty darn important to those who work in it, so says Texas Office of Court Administration Director Carl Reynolds in the second edition of Courtex, a newsletter billed as "Texas Judicial Branch News." (Hat tip to Doc Berman for the heads up.)

There are quite a few interesting tidbits sprinkled throughout the article, but to highlight just one, I was particularly interested to read his perspective on parole and "good conduct time" for offenders. Before takng his current job, Reynolds served twelve years as General Counsel to the Texas Department of Criminal Justice, where, he writes:

I learned that a correctional agency has an inherent interest in maintaining some otherwise unpopular features in state sentencing laws - good conduct time and parole - that provide “back end discretion,” and therefore some behavioral incentive during incarceration. This is the enduring lesson of the state jail sentencing scheme, which does not provide any such incentive, and has proved challenging to implement as a result.

Could more prison building increase Texas crime?

According to a new Vera Insititute report, at Texas' current incarceration levels, building more prisons might actually INCREASE crime.

Thanks to Thinking Outside the Cage for pointing out an excellent new meta-analysis from the Vera Institute, described as "a 45-year-old nonprofit organization that works on safety and justice issues and is headed by Michael Jacobson, who ran New York City's jails and probation system for Mayor Rudolph Giuliani," on the effectiveness of incarceration vs. other alternative crime fighting approaches

Their public policy report released in January, Reconsidering Incarceration: New Directions for Reducing Crime, relies heavily on UT-Austin criminologist and former Austin city councilmember Bill Spelman's research, particularly his widely quoted estimate that a ten percent increase in incarceration leads to a 2-4 percent reduction in crime.

Bill and I have gone around a little over those stats awhile back, and Vera's analysis captures some of my own discomfort at the results - because they're utterly ambiguous they prove little, or more accurately, they confirm whatever preconceived notion you may already have about whether or not prisons "work" to reduce crime. Whatever your view, Bill's findings confirm them if you dig around in the numbers enough. As the report noted,

Supporters take the findings as a confirmation that prison works, concluding that every 10 percent increase in incarceration rates will produce a 2 to 4 percent decrease in crime rates. Opponents, on the other hand, see the findings as a confirmation that prison does not work very well at all. They maintain that even a 4 percent decrease in crime is not much for a 10 percent increase in incarceration.38 Indeed, Spelman himself characterizes a 2 to 4 percent crime reduction as a fairly limited impact given the sizable financial obligation states have incurred in incarcerating so many people.

Given that central conundrum in Spelman's findings, I was happy to see Vera go on to cite additional research I hadn't seen before that I think better characterizes the more fluid, less certain reality of incarceration's effectiveness - bottom line, it's only effective up to a point:

Raymond Liedka, Anne Piehl, and Bert Useem have confirmed, moreover, that increases in prison populations in states with already large prison populations have less impact on crime than increases in states with smaller prison populations. States experience “accelerating declining marginal returns, that is, a percent reduction in crime that gets ever smaller with ever larger prison populations,” they argue. Thus, increases in incarceration rates are associated with lower crime rates at low levels of imprisonment, but the size of that association shrinks as incarceration rates get bigger. Eventually, they say, there is an “inflection point” where increases in incarceration rates are associated with higher crime rates. This inflection point occurs when a state’s incarceration rate reaches some point between 325 and 492 inmates per 100,000 people. In other words, states with incarceration rates above this range can expect to experience higher crime rates with future increases in incarceration rates.

So by that estimate, once the incarceration rate exceeds "between 325 and 492 inmates per 100,000 people," you hit a tipping point and crime actually starts to increase with more imprisonment. Texas' current incarceration rate is greater than 1,000 per 100,000 adults. So what does that tell you about the wisdom of more prison building? As indicated in the report's title, it's high time to reconsider incarceration. As Vera concluded:

Public safety cannot be achieved only by responding to crime after it occurs; research shows that it may also depend on protecting people against those factors that have been shown to be associated with high crime rates, such as unemployment, poverty, and illiteracy. By pursuing crime reduction chiefly through incarceration, states are forgoing the opportunity to invest in these other important areas. As state policymakers continue to feel pressure to introduce measures to keep crime rates low, they would therefore do well to look beyond incarceration for alternative policies that not only may be able to accomplish the important task of protecting public safety, but may do so more efficiently and more effectively.

I agree. And on that note, it might be a good time to link to Grits' "Real Public Safety Agenda for Texas," in case Texas legislators may be looking for public safety investments that don't involve bricks and mortar.

Welcome to 'Ritmo'

Speaking of tent jails in South Texas, how the hell did I miss this? The Washington Post reported Friday that the feds have erected a massive 2,000 person tent city ringed with barbed wire to house immigrant detainees near Raymondville. I try to watch Texas incarceration trends pretty closely, but I hadn't seen this reported before now - perhaps because Willacy County isn't exactly a hotbed of media interest.

One immigration lawyer quipped that the facility should be called "Ritmo" - "like Gitmo, but it's in Raymondville." Reported the Post:

About 2,000 illegal immigrants, part of a record 26,500 held across the United States by federal authorities, will call the 10 giant tents home for weeks, months and perhaps years before they are removed from the United States and sent back to their home countries.

The $65 million tent city, built hastily last summer between a federal prison and a county jail, marks both the success and the limits of the government's new policy of holding captured non-Mexicans until they are sent home.

I've argued before that the current immigration detention boom would spur a massive wave of new prison building if current policies don't change. This is exactly the type of mass-internment scenario I feared. Even immigration officials say the current pace of incarceration is "not sustainable," said the Post, and the volume of detainees already has overstretched the government's ability to manage the new facilities:

An inspector general's report last month on a sampling of five U.S. immigration detention facilities found inhumane and unsafe conditions, including inadequate health care, the presence of vermin, limited access to clean underwear and undercooked poultry. Although ICE standards require that immigrants have access to phones and pro bono law offices, investigators found phones missing, not working or connected to non-working numbers.

In Raymondville, detainees were given no warm clothing during the recent cold snap, reported the Post, and lights inside the tents are on 24-7. To me this shows that draconian immigration policies cannot be enforced without our government engaging in behaviors that border on totalitarian and are frankly un-American. If it's so obviously unworkable, how can it be justified? Officials know a mass-incarceration policy can't be sustained, even admit it to reporters, but bluster forward declaring the effort a "success."

At what point does this short-sighted policy become just a doomed, repeat performance of the Japanese internments for which Ronald Reagan ultimately apologized? I'd say right ... about ... now. And since we're mentioning Reagan, IMO it's about time we revived and updated the Great Communicator's message to Gorbachev in Berlin to fit this current situation:

Mr. Bush, tear down America's immigrant prison camps.

Via the Texas Politics blog.

UPDATE: A helpful reader points out that the Texas Observer covered this facility in October. Here's the story.

Commission on Jail Standards turns down tent jails

The Texas Commission on Jail Standards is telling counties to cool their jets on faddish "tent jail" proposals. TCJS told Smith County last week they couldn't use tents to curb overcrowding, and in Cameron County TCJS announced that an already erected 48-person tent jail "had not been approved for construction or occupancy" and could not be used to house prisoners.

I'm no fan of the tent jail concept - largely for public safety reasons - and I'm glad to see regulators stepping up to the plate to squelch the idea. But you have to wonder what's going on in Cameron County, don't you? I was surprised to learn last year they were building the tent jail in the first place, but I'm downright shocked to learn they did so without approval from TCJS. What was the Sheriff thinking? Or was he thinking at all?

UPDATE: The Cameron County tent jail has been torn down.

A Broken Agency: TYC by the numbers

While I'm more often focused on the adult prison system, it's become clear to me in the last year that if the Texas Department of Criminal Justice has its problems, the Texas Youth Commission is operating in a state of full-blown crisis.

Things have gotten so bad it's hard to wrap your brain around the massive scope of this enormous mess. TYC sounds like a hellish place to work and an even more hellish place to be incarcerated. Here are a few statistics that paint a picture of the biggest difficulties:

• Every year, 3 out of 4 TYC guards leave the agency.

• Ninety percent (90%) of newly hired TYC guards quit in the first six months.

• Guard to student ratios are presently 1-24 instead of the recommended 1-12.
  

• One in seven TYC employees file workers compensation claims each year, the most of any state agency.
  

• Juvenile Corrections Officers in Texas receive two weeks of training compared to 300 hours for guards in the adult system.

• Abuse rates by guards per 100 students more than tripled since 2002.

Besides simply throwing LOTS more good money after bad, I don't know what the fix is to this situation. At a minimum, to even pretend they're seriously addressing the problems, the Legislature would need to double TYC's staff and quadruple staff training time to match guards in the adult system. (Imagine one adult trying to manage 24 misbehaving teenagers, and the high job turnover becomes understandable.) But even if the Lege budgets for more guards, with 90% turnover by new hires in the first 6 months there's no reason to believe Texas can find enough warm bodies willing to take the jobs.

They could try increasing pay significantly, but that gets expensive quickly and it might not help, anyway - most TYC units are in rural areas with a limited available employment pool. It might help if the Legislature decides to convert two TYC units to adult treatment facilities and built new, smaller youth-oriented facilities closer to urban areas. But those changes can't happen overnight, and the system is failing and flailing right now.

This is a broken government agency - mismanaged from top to bottom, underfunded, understaffed and barely functioning. Kids in the system at best are merely warehoused in a dangerous setting, and at worst are abused by guards.

At this point, it might even be wise to simply "sunset" TYC out of commission entirely, though that's an unlikely outcome. If the ongoing federal probe of TYC abuses leads to major civil rights litigation by the USDoJ against the state, officials may come to wish they'd considered that option.

No Judge is an Island: Ask Susan Criss

I couldn't be more pleased to see that Judge Susan Criss, a district court judge from Galveston and a past Grits guest blogger (who I frankly wouldn't mind seeing elevated to an appellate post one day), has launched her own new blog entitled, "As The Island Floats." Here's a taste from one of her initial posts:

I brought over a defendant this week who had notified the Court that he was having a problem with his lawyer.When I asked him why he was upset with his lawyer the defendant stood and said, "Judge, he's not lying for me.. he's lying to me."

Sometimes keeping a straight face on while on the bench is challenging. A bit more questioning revealed that the lawyer had not lied to the defendant. He had procrastinated about communicating with his client when plea bargain negoitioations came to an impasse. Lawyers sometimes avoid going to see their clients in jail when there is no good news to report. That only causes more anxiety for both the lawyer and defendant in the long run.

That's an excellent piece of advice for defense attorneys - the kind of thing nobody tells you in law school about how to keep your clients happy and the process running smoothly. If Judge Criss keeps this up she'll soon become a go-to resource for the Texas courthouse crowd.

Good job, Judge Criss, keep up the good work. And welcome to the blogosphere.

See some of Judge Criss' earlier writings here.

Task Force on Indigent Defense reports 2006 successes

The Texas Task Force on Indigent Defense has posted its 2006 annual report online (pdf). Lots of interesting stuff here that may merit further examination, but I wanted to go ahead and put the link out there. The TTFID rightly pats itself on the back for expanding the number of clients represented by public defenders in Texas:

In 2006, the Task Force helped establish through funding the first regional public defender office in the state (serving Val Verde, Edwards, Terrell and Kinney counties). There was also continued funding of two new public defender offices in the state – Bexar and Hidalgo. Texas has nearly doubled the number of public defender offices that existed before the Texas Fair Defense Act established the Task Force.

In addition, the task force's latest newsletter offers a number of heartening stories of successful programs the TTFID has funded. Those wonkish few interested in more detail may also want to see the Task Force's orientation materials presented to new judges at a recent conference in Lubbock explaining the importance of indigent defense. Last fall, TTFID also published this analysis providing evidence of the feasibility of public defender systems in Texas.

County officials should note responses to the current request for grant applications to the task force for their next funding cycle are due Feb. 9.

These folks are doing good work and the Indigent Defense Task Force has been one of the true, unsung success stories in Texas criminal justice politics over the past several years. If our state's leaders chose to support its work as lavishly as they do, for example, wasteful border security boondoggles, it'd go a long way toward fixing many of the problems caused by low-quality indigent defense.

Friday Link Dump

Here's a quick roundup of some stories I missed while I was down sick the last couple of days:

• Legislator blogging is 'in'. State Rep. Richard Raymond has begun his own bilingual blog, including video blogging. Welcome to the blogosphere, sir. I've said before I think every politician should have a blog.
  

• Odgen says TYC will top budget priorities. The McAllen Monitor's Elizabeth Pierson continues her excellent coverage of problems at the Texas Youth Commission's juvenile detention facilities. She quotes Senate Finance Chair Steve Ogden declaring,"When we’re marking up the budget, we’re going to kick (TYC) up to the top of the list when we make recommendations so we don’t get into the situation where we take them up last and we’re out of money and we can’t do anything. ... We need to make TYC a priority and focus on it early and first."

• Not quite 'heroes': Andrew McCarthy at the National Review explains why the two Texas Border Patrol agents convicted of shooting an unarmed drug smuggler in the back while he was fleeing deserved jail.

• Dallas County Jail Crisis: DallasBlog updates us on the challenges facing Sheriff Lupe Valdez in reforming the "Chamber of Horrors" that is the Dallas County Jail.

• AG says TDCJ can test inmates for HIV if it chooses. After Sen. Rodney Ellis requested on opinion on whether it's within TDCJ's purview to test all incoming inmates for HIV, AG Greg Abbott this week came back with an answer: Yes, they can. Now it remains to be seen if TDCJ's board will exercise this rule making power. Currently inmates are tested only if they give consent, which results in about 80% of inmates being tested. Testing everybody might cost big bucks, though - already HIV medications account for more than 40% of TDCJ's pharmaceutical budget. On the other hand, not knowing could cost more if it means they're more likely to spread the disease. See the Houston Chronicle's coverage.

• Smith county jail guard(s) may have assisted murder for hire scheme. This sordid tale from my hometown highlights common security problems in local jails. A crook sitting in jail facing a life sentence on the word of a snitch "obtained a picture of the informant and a cell phone in the jail and plotted to kill the person." I've written before about how inmates get cell phones - you have to have a guard help you. And how else would he obtain a picture of the informant in jail without the assistance of law enforcement? Shouldn't whatever guard who assisted this murder for hire scheme share in the conspiracy charges? Sounds to me like Smith County has at least one or more crooked guard on the payroll, not to mention some neglectful administrators. Yes, I'm talking about you, J.B.

• Dutton re-files bill restructuring pot sentences. Kudos to Rep. Harold Dutton for filing HB 758, which would reduce the penalty for possession of less than an ounce of marijuana to a Class C misdemeanor. Similar legislation in 2005 received unanimous support from the House Criminal Jurisprudence Committee, including some of the most conservative members in the Texas Legislature, primarily because it would significantly contribute to reducing county jail overcrowding and likely even increase enforcement. (More on this soon in a planned post outlining what the Legislature could do to reduce county jail overcrowding.)

• Guards in trouble everywhere you turn. Jail and prison employees are having a tough go of it recently. The Back Gate reports on a prison guard indicted for beating an inmate in a wheelchair, and another case where a dentist in a state jail has been accused of sexually assaulting female inmates. Yet another guard at the local jail in Washington County has been accused of smuggling cigarettes into the jail and having sex with a female prisoner.

• Immigration Detention debates heating up in Texas. For those tracking issues surrounding immigration detention in Texas, see this informative post from the Immigration Law Blog.
  

• Dearl Hardy not out of the woods yet. In a surprise move, the Texas Court of Criminal Appeals reinstated legal proceedings against former Chambers County Chief Deputy Dearl Hardy, possibly putting his Christian C&W music career on hold (to the chagrin of both his fans). As this Texas Observer report from 2001 demonstrates, it probably couldn't happen to a nicer guy.

Fight on, Senator

Here's a good Fort Worth Startlegram staff editorial extolling Texas Senate Criminal Justice Committee Chairman John Whitmire's efforts to shake up the prison system. The Star Telegram's editorial board was especially (and justly) congratulatory regarding Sen. Whitmire's insistence on better management practices by the Department of Criminal Justice before approving more prisons.

I was particularly pleased to see the newspaper disassociating support for more prison building with being "tough on crime." The item concluded:

Despite having spent more than $2.3 billion on new prison beds in recent years, some in the Legislature and among their leadership still want to act like they are being tough on crime by building still more prisons and locking up more people.

At least in the case of nonviolent offenders, there are better, smarter, less costly ways to mete out justice and keep our streets safe. Whitmire is pushing those ways. He's right, and he's exactly the right person to be leading this effort.

Fight on, senator.

Radio station poll on treatment vs. prisons

A reader alerts me to a non-scientific poll on Houston's KTRH news radio station's website posing the treatment vs. prisons question - Go let them know your opinion.

So far, more prisons is slightly ahead. But I must say I thought they posed the question in an odd way. "How would you rather your tax dollars be spent?" implies we'd spend the same amount either way. If they'd attached dollar figures to each of those options: $125-150 million per year for new prisons, e.g., or less than half that to expand treatment beds, I'll bet you'd have gotten quite a different answer.

I also bet if you told folks the relative recidivism rates from prison vs. treatment, it would make a difference, too. Not to mention the fact that we can't find enough guards to staff the prisons we've got.

Would some be less hostile to "treatment" if they knew Whitmire and Madden want to add thousands of new beds to the adult system, just different kinds of beds matched to the needs and risk level of the offender?

Would they support prison building if they knew the demand for beds wasn't caused by population growth? In the last three decades, Texas prisons expanded in size 573% while the state population grew 67%.

Would people support more prisons if it meant their promised tax cut could be smaller? I think that might chip a few points off the prison builders' support.

You can't take all that into account in a quickie web poll. For those reasons I'm skeptical of such unofficial, single-question tallies. But it does show there's a lot of education work still to be done for those who oppose continuing Texas' prison building jag.

Fabelo report available online

Following up on Grits' coverage of Tuesday's joint hearing between the House Corrections and the Senate Criminal Justice Committtees, I wanted to post this link to Dr. Tony Fabelo's much-ballyhooed report on "Justice Reinvestment" which was unveiled at that meeting. See also MSM coverage from the hearing.

Most probes of shootings by Harris County deputies 'substandard'

According to a "world-reknowned forensic expert" testifying in federal court, the Harris County Sheriff's Office conducts "intentionally substandard investigations" when one of their deputies shoots someone. Yow!

Likely few would deny the deputy responsible for this particular shooting shouldn't be employed in law enforcement. He was later fired - not for this incident where he shot a handcuffed suspect, nor for another off-duty shooting eight days earlier, but for a case where he performed an in-uniform traffic stop to collect a $400 debt on behalf of his father-in-law.

But the civil trial has revealed a troubling pattern of lackadaisical investigations in officer-involved shootings that deserves more detailed scrutiny. Reports the Houston Chronicle: ("Harris deputy probes 'substandard,'" Jan. 30):

After reviewing how the Sheriff's Office investigated the [Hiji] Harrison shooting, [Robert D.] Keppel said that "something was amiss."

"I was concerned that the whole investigation was substandard," he said.

His findings prompted him to review 38 deputy-involved shootings in 2002, 2003 and 2004. He found similar "omissions and deficiencies" in 23 of those cases.

Keppel's testimony is key for the Harrison family's lawyers, who are trying to prove that the Sheriff's Office has a pattern of shoddy investigations that protect trigger-happy deputies and leave citizens vulnerable to serious injury or death at the hands of law enforcement officers.

Eight days before the Harrison shooting, Wilkinson shot an alleged shoplifter while working off-duty for Dillard's in Humble.

He was fired after stopping a motorist who owed Wilkinson's father-in-law $400 and collecting the debt.

Wilkinson, who began his testimony late Monday, said the man volunteered the money. Wilkinson didn't ticket the man, but let him go with a warning.

He is expected to tell jurors about the shooting today. But he previously has said he shot a handcuffed Harrison after the two struggled in the back of the cruiser and Harrison tried to grab the deputy's gun.

Keppel's conclusions contradict Wilkinson's version.

"There was no forensic evidence to support his story," Keppel said.

There was so much missing — items, tests and interviews — that Keppel said he believed he received an incomplete file.

He called photographs of the crime scene "highly substandard."

Keppel found no evidence in the records that a photographer took pictures of the back seat while standing on the passenger side of the vehicle.

He said none of the photos included rulers and that the absence of measurement "just shows neglect." No log of the photographs was taken. Close-ups of the blood splatters and Harrison's handcuffed wrist were lacking.

"There should be evidence in the back seat of that vehicle of a life-and-death struggle," Keppel said.

Whatever the outcome of the case, the Harris County Sheriff's Office should take Keppel's analysis as a wake up call. Twenty three substandard investigations out of 38 just won't do. The families of the dead deserve more respect than that, and taxpayers have a right to expect greater due diligence when someone is shot and killed.

Some TX prisons are only 62% staffed; trustees doing guards' work

Yesterday's hearing offered interesting insight about how TDCJ uses "trustees" to perform duties in the prison that one would traditionally associate with guards - even running errands in TDCJ trucks outside of the prison grounds.

Chairman Whitmire asked why trusties aren't more frequently considered good candidates for parole? Parole Board Chairwoman Rissie Owens replied that often people plea bargained to a lesser offense and the BPP doesn't think they're as low-level as they're classified. (That view was echoed recently by a writer at the Back Gate.)

That begs the question, though, of why they're trustees with special privileges in the first place if they're more dangerous than the classifications indicate? That question remains unanswered. Only TDCJ could tell us.

TDCJ Chief Brad Livingston implied a more mundane reason why so many trustees remain incarcerated - chronic understaffing at Texas prisons. Prison units with the worst problems retaining employees, said Livingston, are presently operating at 62% staffing capacity. He didn't say so outright, but his comments seemed to suggest that in some cases trustees are filling roles that might be filled by guards if TDCJ could hire enough to staff its facilities.

Whitmire pointed out that of 6,200 inmates currently classified as "outside trustees." 5,700 are already parole eligible. If these people are trustworthy enough to be allowed outside-the-prison privileges, reasoned Whitmire, it's highly likely they're prepared for parole.

He speculated that the reason these trustees weren't paroled more readily was that TDCJ improperly relied on their labor at the expense of their rights, that in fact they were being punished for being model, trustworthy inmates. Nobody from TDCJ had a great answer to that argument.

If it's true, it's pretty grim. And it also means Texas could be shorthanded by up to 5-6,000 guards and support staff, instead of the 3,000 we hear discussed more routinely.

Whitmire and Madden: Programatic decisions, not population growth, causing prison overcrowding

Dominic Gonzales at Texas Criminal Justice Coalition pulled some choice quotes from yesterday's hearing that respond directly to Lt. Gov. Dewhurst's ill-informed assertion that Texas hasn't built enough prisons to match population growth. Check out the short flash video with audio clips from the two chairmen speaking at yesterday's joint meeting between the House Corrections and Senate Criminal Justice Committee.

Fabelo: We've created the "Walmart of prisons" in Texas

How fast is Texas' prison population growing? According to Tony Fabelo's presentation at yesterday's hearing, in December 2001 Texas had 6,910 empty prison beds. Indeed, Texas' total empty bed capacity in 2001 was larger than the entire prison capacity in 15 states.

By Feb 2003, just 14 months later, all of those beds were full. As of last year, Texas was renting 1,900 extra beds from county jails. By 2012, said Fabelo, Texas will be 17,000 prison beds short if policies don't change. That rate of growth can't remotely be attributed to Texas population increases.

We have “created the Walmart of prisons in Texas,” Fabelo, who argued for creating a new array of incarceration alternatives that will compete with "Walmart" for the confidence and attention of judges responsible for sentencing.

That's a bit of an odd market analogy, but overall an astute observation, IMO, in more ways than one. Just as Walmart often drives away other businesses, the over-reliance on prisons has caused Texas to de-emphasize approaches that may actually be more effective at reducing crime. Without question that's what's happened in Texas since all the in-prison drug treatment money was gutted in 2003.

Fabelo's advocating a more responsible long-term approach. By contrast, Lt. Gov. Dewhurst has proposed a politicized and ill-considered one. It's a long way till the legislaion is finalized, but these initial blowbacks indicate Texas' response to its overincarceration crisis may not enjoy the smooth ride Chairman Madden had earlier predicted.

Following Rissie Owens

The funniest scene from yesterday's joint hearing of the House Corrections and Senate Criminal Justice Committees didn't take place in the meeting room but in the hall outside, where a camera crew from KHOU Houston, a CBS-affiliate tried to get Parole Board Chair Rissie Owens to comment on Dr. Tony Fabelo and Sen. John Whitmire's statements pinning the bulk of Texas' prison overcrowding problems on her agency.

Owens, who wore a deep scowl, wanted no part of that conversation. She power-walked away from them with the reporter trailing behind repeating, "Why are you running away from me Ms. Owens? I just want your reaction."

When she got to the door of the packed room, the reporter caught up with her and repeated his question about her agency's culpability in prison ovecrowding. She grabbed his mike in his hand and shoved it downward while she tried to squirm in sideways into the room. "Please don't touch me or my microphone, Ms. Owens, I just want to ask you a question." She did let go, but by then a space opened up for her to squeeze through, and Rissie Owens was gone.

The next reporter who gets that chance, I hope they also ask Ms. Owens whether she thinks its a conflict of interest that her husband Ed is deputy director of TDCJ, and whether she thinks any of the Sunset recommendations to reduce conflicts of interest on the parole board were because of that relationship?

For those interested, here's a webcast of a Nov. 14, 2006 Sunset Commission hearing where Owens was forced to grumpily and defiantly answer some of those questions in response to Sen. Whitmire. She also responded formally, if again grumpily, in writing to the Sunset Commission's report. See more from Grits on the subject here, here, and here.

Should assertions of innocence be held against parole applicants?

With the rash of newly discovered innocence cases in Texas, it now appears inarguable that SOME percentage of those in prison today, however big or small the number, likely face the stark choice described in this new article, "The Innocent Prisoner's Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings," by Daniel S. Medwed.

If you're in prison but actually innocent, should you lie to the parole board to "take responsibility" and "demonstrate remorse"? Odds are you'd get out a lot quicker, says Medwed. But then should the system be allowed later to admit such statements in court? In this context, Medwed reflects on whether it's wise to hold "assertions of innocence" against prisoners in the parole process and offers reform suggestions. Here's the abstract:

The granting of parole in the criminal justice system is often viewed as an act of grace: the dispensation of mercy by the government to an individual prisoner deemed worthy of conditional release prior to the expiration of his sentence. Yet the criteria upon which state parole boards base these acts of grace, let alone the propriety of using such criteria, has received little scholarly attention and remains something of a mystery to those outside the inner sanctum of parole boards.

Denials of parole are largely unreviewable and courts have held that due process imposes only a minimal burden upon parole boards to reveal the rationales for their decisions. Nevertheless, surveying state parole release decisions and policies demonstrates that, among other factors, a prisoner's willingness to "own up" to his misdeeds - to acknowledge culpability and express remorse for the crime for which he is currently incarcerated - is a vital part of the parole decision-making calculus. That is, admitting one's guilt increases the likelihood of a favorable parole outcome for an inmate whereas proclaiming innocence serves to diminish the chance for release. The main objective of this Article is to consider whether this is wise. Should a prisoner's assertions of innocence be held against him in the parole process?

Part I of this Article briefly discusses the origins of parole in the United States as well as the contemporary features of parole release decision-making. Next, Part II explores how the reliance on prisoner admissions of guilt as part of the parole release decision intersects (and potentially interferes) with the efforts of innocent inmates to win their freedom. Part III then critically examines the theoretical and normative implications of the current parole system's emphasis on remorse and responsibility. Finally, Part IV recommends several specific reforms concerning the treatment of inmate claims of innocence at parole hearings: limiting the use of parole hearing transcripts at future post-conviction proceedings; distinguishing statements of remorse from those of responsibility; and re-conceiving the role played by parole boards in entertaining questions of guilt and innocence.

Via the Legal Theory Blog.