Meeting Expectations: TYC holds public hearing on use of force

A Travis County judge said holding a public hearing is the least the Texas Youth Commission could do before changing its use of force policy, and since they finally held that hearing yesterday, apparently blogging about it is the least I can do here on Grits.

A regular reader emails today to demand, "Don't even think about leaving town without posting on the use of force hearing yesterday. You are LATE as it is."

So it's not just TYC which must meet expectations, apparently, but me, as well! I couldn't make it to the hearing; I'd already said my piece when I submitted written comments, and was waiting till I had a little more information. But now I feel obligated (since I'm "LATE," after all!) to go ahead and link to MSM coverage of TYC's hearing yesterday to evaluate its proposed use of force policy. Here's the coverage I saw:

• Critics: TYC pepper spray policy is vague, The Daily Texan
• TYC urged to limit pepper spray, AP
• Teen inmates pepper sprayed on videotape, The Austin Statesman

I have no idea what the agency will do here: I hope they go back to the old policy, which was based in a court settlement and didn't need changing, but they could easily approve the same one Acting Executive Director Dimitria Pope first proposed on August 2. At this point, you never know.

SEE ALSO: Public policy report from Texas Criminal Justice Coalition (pdf) on TYC Pepper Spray Policy.

RELATED: For the period I'll be in N'awlins, I've put up a reader poll asking, which will happen first at the Texas Youth Commission:

• The National Guard or state police are called in to guard TYC facilities because they're shortstaffed
• Acting Executive Director Dimitria Pope is relieved of her position
• A new conservator is appointed
• TYC announces more facility closures
• The 81st (2009) Texas Legislature convenes

Let me know your opinion in the sidebar poll and in the comments. And play nice, while I'm away, folks! Please? :)

Open Thread: Stuff to Read While I'm Out

I'm out to run a few errands today before leaving tomorrow for a long drive to the International Drug Policy Reform Conference in New Orleans. While I'm otherwise occupied, check out these Texas blogs, all with interesting, recent criminal justice posts:

• Prevention not Punishment
• I Was the State
• Dallas Sidebar
• The Defense Perspective

Consider this an open thread; what's on your mind?

Readers: Say 'No' to Unmanned Police Spy Planes

To recap last week's reader poll question, 217 readers responded to the question:

Should the Houston Police Department use unmanned surveillance aircraft for traffic enforcement and covert operations?

Of those, 72 percent opposed use of unmanned spy planes in urban Houston, while 28% favored the idea.

A couple of the readers who favored the idea left comments in this post saying the use of unmanned spy drones is no different from current police use of helicopters, but I don't think that's entirely accurate. For starters, it begs the argument, if it's the "same" as a helicopter, and HPD has helicopters, why buy this new gadget?

The most important service of a helicopter is transporting people, getting to the scene of an emergency despite traffic at any time of day, but this plane won't do that. As for aerial surveillance, the noisy helicopter gives automatic notice when it's around, while the spy plane is designed for covert viewing. Indeed, the amount of visual intrusion from humans in a helicopter is advanced by a magnitude of scale with an unmanned spy drone, which will have long-range cameras in all directions, constantly recording for future analysis.

From a constitutional perspective, this bizarrely would not violate any Fourth Amendment rights under current Supreme Court standards, for reasons I've criticized at length in the past. It's the same legal standard that has occasionally protected shopping mall voyeurs taking upskirt photos on escalators. Basically the law says it's not an invasion of privacy to take your picture if someone is in a place they have the legal right to be and takes a line of sight shot, even if they use intense magnification from a distance. While this protects paparazzi who want to shoot pics of naked movie stars suntanning in their backyards, the precedents establishing this standard have for the most part been set in law enforcement cases.

So if they're "just looking" (after all, as Houston PD Chief Harold Hurtt says, if you're not doing anything wrong, what do you have to hide?), police can fly their toy camera plane around town and peek into backyards all day, under this theory, without violating our rights as currently formulated by SCOTUS.

One commenter envisioned a use that would violate current Supreme Court standards, "If they put IR [infrared] on it and start randomly looking for hot spots where people are growing pot it might" violate Fourth Amendment rights. That's exactly correct, at least under under current Supreme Court rulings, if you agree with the Court's limited interpretation of the Fourth Amendment.

Myself, I believe that radical technological innovations (like quiet spy planes with 360-degree cameras rigged with powerful telephoto lenses) require a reworking of these old standards of privacy which have rapidly become inadequate to handle invasive technology. I don't know exactly where that line should be drawn, but I know when this type of invasive technology is legal for use by domestic police, a new line needs to be drawn.

Others questioned whether it's appropriate for police departments to purchase military equipment for use against their own citizens. That already happens, of course, with SWAT and other specialized units, and even to some extent with average cops. Today's officers are often so larded down with equipment on their utility belts they can hardly run. (At the Austin PD, IMO, this trend has reached a point of absurdity.) But using military spy equipment against your own people takes that concept to a new level, and makes us wonder how far police departments will go mimicking police tactics more commonly used in Iraq and Afghanistan against our military enemies.

Someone else said simply, "it's not how I want my tax dollars spent," and given the decrepit state of the Fourth Amendment, I think that's the bottom line. Houston PD can't put enough officers on the street, but they're going to spend millions on expensive toys and gadgets. That spy plane won't make one more arrest, won't write one more traffic ticket, and it won't quell a single domestic disturbance. All it will do is take pictures of from the sky, for as long as HPD is willing to pay the gasoline bill. I think most people in Houston would prefer they pay a few more officer salaries with that money, instead.

This was just a demonstration of the technology, HPD said, they haven't purchased it yet. Let's hope they pass; it would be a big waste of time and money and set a bad precedent.

SCOTUS to decide in Texas case when right to counsel attaches

SCOTUSBlog brings word that a case brought by the Texas Fair Defense Project in Fredericksburg has been granted cert, meaning the case will be decide by the highest court in the land. According to Lyle Denniston,

The Supreme Court agreed on Monday to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed and sends the individual to jail, or whether it only ataches when a prosecutor prepares to or makes a charge. ...

The new right-to-counsel case the Justices will hear, with oral argument likely in March, involves a Fredericksburg, Texas, man, Walter Allen Rothgery, who sought but was denied the aid of an attorney when he appeared before a magistrate at a probable cause hearing. The magistrate found probable cause to support a charge that Rothgery was a felon who had a gun; Rothgery was sent to jail. He was released on bond, but rearrested later after a grand jury indicted him. Once he obtained a lawyer, the charges were dismissed; the felony allegation against him turned out to have been an error because charges against him in California had been dismissed.

Rothgery sued the county in a civil rights lawsuit over the denial of a lawyer at the first hearing. The County opposed the lawsuit, contending that the right to counsel did not attach until he actually had been indicted — a claim ultimately upheld by the Fifth Circuit Court. Rothgery’s appeal was supported by 22 law professors urging the Justices to clarify when the right to counsel attaches.

Congrats to TFDP head honcho Andrea Marsh and Chief Counsel Harry Williams on getting this major opportunity. When an advocacy group sets out to file impact litigation in federal court to change local practices, this is exactly where they hope to end up: with an opportunity to set new precedent on behalf of defendants. Good luck, folks!

Here's a little more on the case from TFDP's newly upgraded website:

Rothgery v. Gillespie County

In Rothgery v. Gillespie County, TFDP represents an individual who was denied counsel for over six months while free on bond. Mr. Rothgery was arrested for being a felon in possession of a gun when he was not, in fact, a felon. Although Mr. Rothgery repeatedly asked for a court-appointed lawyer, it was not until Mr. Rothgery was re-arrested and spent time in jail that the county gave him an attorney. Once appointed counsel, Mr. Rothgery‘s lawyer was quickly able to obtain paperwork that showed Mr. Rothgery was not a felon, and the charges were dismissed.

In June 2007, the Fifth Circuit Court of Appeals in New Orleans upheld the dismissal of Mr. Rothgery‘s claims, finding that Mr. Rothgery‘s right to counsel did not attach until a prosecutor became involved in the case, which did not occur until months after Mr. Rothgery had been committed on charges filed by law enforcement shortly after his arrest. In reaching this disposition, the Fifth Circuit employed a test that has not been used either in Texas courts or in other federal courts and created a split with other federal courts of appeal. TFDP is seeking Supreme Court review of the case.

Rothgery v. Gillespie County case documents:

• Mr. Rothgery‘s Original Complaint
• Mr. Rothgery‘s Appeal Brief to the Fifth Circuit
• Fifth Circuit's Decision
  
• Mr. Rothgery‘s Petition for Writ of Certiorari to the U.S. Supreme Court

UPDATE: At the TDCAA message board they've labeled this a case to watch, with a commenter adding that the Texas courts have failed to clarify the question. MORE: See coverage from the Austin Statesman.

Will Democrats Field ANYONE for the Texas Court of Criminal Appeals?

Texas Monthly may think they're "Texas' Worst Court," and that Presiding Judge Sharon Keller should be impeached, but with one month left to go, no Democrat has yet signed up to run against any of the incumbents up for re-election next year on the Texas Court of Criminal Appeals. This potentially leaves the same nine members on the court for the next biennium who Presiding Judge Sharon Keller bullied into repeated outrageous decisions over the last several years.

Of the incumbents who're up next go-round, at least Tom Price has the good sense to call a spade a spade, vocally declaring some time ago that the court's radical pro-prosecution precedents made them a "laughingtsock" around the nation's legal community. And Cathy Cochran finally came out to publicly criticize the Presiding Judge over the recent "We close at 5" debacle. The other judge up next year, Paul Womack, probably should be targeted before those two, but really IMO it's time to begin a comprehensive infusion of fresh blood.

I'm worried nobody will run for any of these slots, even though arguably these three may be the most vulnerable incumbents on the statewide ballot. Every potential candidate I've spoken to has said "no" or decided to run for something else, but I'm still hoping somebody - preferably three somebodies - will decide to step up and run on the Democratic ticket for the Texas CCA.

Informants, shoddy counsel, and the death penalty

"Houston has 1.3 per cent of America's population but carries out 10 per cent of its executions," reports the UK Guardian, but many of those executed have something in common: Their lawyer. See the Dec. 2 Guardian profile of Houston defense attorney Jerry Guerinot, who the Guardian calls "Lethal Counsel," who represented a DEA informant in a death penalty case without ever speaking with her law enforcement handler. Her appellate lawyers are claiming incompetent representation, but Guerinot insists his representation was "aggressive." Via CrimProf Blog.

Rolling Stone: Colombian Drug War Offers Preview of US-Funded Mexican Surge

Those who don't learn from the history of the Drug War in Colombia are failed to repeat it in Mexico. For a preview of what another $1.4 billion may buy in a Mexican edition of "Plan Colombia," see the article from Rolling Stone, "How America Lost the War on Drugs," Nov. 27, on how we spent the last half-trillion (via Strange Attractor):

All told, the United States has spent an estimated $500 billion to fight drugs - with very little to show for it. Cocaine is now as cheap as it was when Escobar died and more heavily used. Methamphetamine, barely a presence in 1993, is now used by 1.5 million Americans and may be more addictive than crack. We have nearly 500,000 people behind bars for drug crimes - a twelvefold increase since 1980 - with no discernible effect on the drug traffic. Virtually the only success the government can claim is the decline in the number of Americans who smoke marijuana - and even on that count, it is not clear that federal prevention programs are responsible. In the course of fighting this war, we have allowed our military to become pawns in a civil war in Colombia and our drug agents to be used by the cartels for their own ends. Those we are paying to wage the drug war have been accused of ­human-rights abuses in Peru, Bolivia and Colombia. In Mexico, we are now ­repeating many of the same mistakes we have made in the Andes. (emphasis added)

The whole article is worth a read, particularly for those who haven't been following the foreign policy component of the War on Drugs. The piece confirms my impression, as I've maintained previously that Mexican drug cartels arguably constitute the greatest overall public safety threat from the drug war. I'm increasingly convinced that current proposals for anti-drug collaborations with Mexico precisely risk repeating the mistake of allowing "our drug agents to be used by the cartels for their own ends."

House Corrections Faces Full Plate of Interim Studies

The Texas House Corrections Committee, which already had a lot going on with oversight functions at the Youth Commission, was handed a full plate, indeed, by Speaker Tom Craddick with the announcement of its "interim charges." (See here, p. 5-6) Since the Texas Legislature only meets 140 days every two years, interim charges are topics that standing committees study in between to prepare to address more complex issues in a short time frame, meaning it's highly likely these subjects will be the topic of substantive legislation in 2009. Here are the highlights:

Study Technocorrections
This should please Michael over at Corrections Sentencing: The first charge instructs the committee to:

Explore the use of technology practices that improve efficiency, safety, and coordination of criminal justice activities on the state, local, and county levels.

My guess is the intent of this item is to focus on GPS solutions, but I can actually think of many technology practices (or the lack thereof) that could be improved to benefit efficiency, safety and coordination. For starters, an array of silo'ed bureaucracies house a variety of different databases and information streams on related topics that are seldom cross-checked. E.g., pretrial services divisions prepare much of the same information as do probation officers' reports but frequently do not share it, requiring longer waits and redundant work.

Similarly, documentation generated by county probation departments typically does not inform decisions by state parole officers, even though they're frequently supervising the exact same offenders at different stages of the process. That's especially problematic for youth sent to TYC, most of whom were on probation before imprisonment, who may not stay incarcerated long, and who return to the same community supervised by a different bureaucracy. Better coordination between juvenile probation and parole should lead to both stronger supervision and better outcomes for the offender.

What to Do With Drug Offenders?
Two charges deal directly and indirectly with how the state should handle drug offenders. One charge directs the Committee to propose improvements to the state jail felony system (about half of state jail felons are drug offenders), evaluating "original intent for use, sentencing guidelines, and effectiveness." Another joint charge with the Appropriations Committee will have Corrections:

Review and research the availability, coordination, efficiency, and allocation of substance abuse treatment resources for probationers, pretrial defendants, people in the custody of the Texas Department of Criminal Justice (TDCJ), and parolees. This review should include methods to reduce and improve current assessments, training, and referring protocols and the identification of any barriers that may be impeding all of the above.

The results of this study will be especially interesting in light of recently expanded treatment funding from the Legislature; it's always been an open question whether sufficient capacity exists in every jurisdiction to make full use of new treatment dollars.

Re-entry Focus
The next charge focuses on prisoner re-entry:

Consider new strategies for meeting prisoner reentry challenges in Texas, including the evaluation of programs with documented success. This review should include the availability of housing and occupational barriers.

Given that as many as one in eleven Texas adults has a felony conviction, the need here is enormous. Housing and occupational barriers reduce the chances for successful reform and increase recidivism on their face. (Marc Levin at the Texas Public Policy Foundation recently published a white paper on the subject, arguing for ramping down occupational restrictions (pdf) on ex-felons, and you can also listen to a podcast from a recent public forum on the subject.)

Narrow Immigration Focus
In a joint charge with the Committee on County Affairs, House Corrections will focus on immigration matters, particularly:

Study policies and procedures related to illegal immigration and border security
of the TDCJ, county probation departments, and local and county jail facilities,
and make recommendations to improve coordination with international, federal,
state, and local authorities.

All sorts of crazy anti-immigrant proposals have been made over the last couple of years so this interim charge could be a minefield, but it sounds like Chairman Madden intends to limit its scope. According to Quorum Report's Daily Buzz:

Knowing that Chair Rep. Jerry Madden (R-Plano) is from North Texas makes it difficult not to think immediately of the current controversies in Farmers Branch and Irving. In Farmers Branch, voters passed an ordinance in May that would require landlords to check for citizenship status. And in Irving, Council voted to begin turning over all names of those arrested by Irving Police to the Immigration and Customs Enforcement (ICE) service, with the intention of deporting those in the country illegally.

Those were not the motivating factor in this charge, Madden said. Instead, the committee wants to make sure the state has consistency in it its policies on illegal immigrants with felony convictions, from the probation departments to the local jails to the prison system.

“We’re interested in specifically looking at what’s being done to check citizenship, and to make sure that uniform steps are being taken,” Madden said. “We shouldn’t be treating illegal immigrants any differently than we would treat legal immigrants.”

Mental Illness and Crime
Finally, I was pleased to see the committee has a substantial joint interim charge with the Appropriations Committee concerning mental illness and crime. The charge directs the committee to:

Assess the relationship between mental illness and criminal behavior and offer reforms needed to address the proliferation of mental illness in the adult and juvenile criminal justice systems. This review should include an examination of data sharing between criminal justice and health and human services agencies, proper screening, assessments, treatment, discharge planning, post-release supervision, and community services.

Given that fully thirty percent of adult Texas prison inmates are former clients of the state's indigent mental health system, arguably this (and the quite-related "re-entry" topic) may be the most important of these interim charges from a public safety perspective.

This is a busy interim agenda for the House Corrections Committee considering the Lege is a little late this time around getting to interim charges in the first place. Good luck, folks - you've got a lot of important stuff on your plate.

Oral histories allege abusive TYC practices

The Dallas News today has a feature by Gregg Jones entitled "The Faces of TYC" (Dec. 2). They've also published an interactive website featuring video interviews with inmates, parents, staff, whistleblowers and watchdogs.

Jones' piece today tracks the case of former TYC inmate Chris Gann. As in other such stories, TYC staff were prohibited by confidentiality laws from addressing specifics about the youth's behavior, so the tale is largely told from the ex-inmate's point of view, for good or ill. But in particular I wanted to ask current and past Youth Commission employees about two practices described by Mr. Gann that were allegedly used at the now-closed Marlin unit. Read this, TYC'ers, and tell me if you've ever witnessed these tactics in action:

The staff at the TYC prison in Marlin called it "discipline training."

Every afternoon, for an hour or longer in the summer heat, Mr. Gann and other Marlin inmates were forced to run laps around a dirt track inside the compound, he said. On a staff member's command, the inmates would throw themselves to the ground for push-ups, then scramble to their feet for more laps.

Anyone who stopped without permission was slammed to the ground, handcuffed and left to lie in the blazing sun, he said.

"We were all just falling over and throwing up," said Mr. Gann, by then 14. When it was all over, "we would all be laying there, crying, sore, all scraped up and bleeding."

Young inmates who got sick or hurt found little sympathy, he said.

"When you would go to the infirmary, all they would tell you was to drink water and you'd be OK," he said.

Inmates also performed a drill known as "55-5," he said, in which they would stand at attention for 55 minutes at their bunks, then sit for five minutes. They did this about six times a day, he said.

Does the description of "discipline training" accurately describe how youth were treated at Marlin or at other TYC facilities? Are kids made to run or exercise to exhaustion? Has anyone ever witnessed a youth handcuffed out in the sun for ceasing rigorous exercise without staff permission?

And is the "drill" (not much of a drill, really) that Gann refers to as "55-5" still used at TYC, and if so what is it's purpose? The claim that up to six hours of a 24-hour day were spent on 55-5 drills, seems outrageous: Can this be corroborated?

The videos are compelling. While administrators claim abuse of youth has been 98% reduced, I wonder whether all the agency's abusive practices have even been identified? The DMN website along with Gann's story makes me think that a pure oral history project interviewing inmates and staff, in particular, would substantially enlighten debates over what's wrong at TYC and what should be done.

Mexican cartels continue supplying illegal drugs despite massive numbers of arrests and deaths

The total number of people employed in aggregate by Mexican drug cartels must be just massive.

According to the Washington Post ("Mexico launches 8th offensive in drive against drug cartels," Dec. 1), 14,000 cartel-related suspects have been arrested in Mexico in the last year, while 4,000 more people died in the intra-cartel feuds over favored supply routes in the last 18 months. Some of those 4,000 were police or elected officials who opposed illegal drug trafficking, but most deaths were from rival cartel members killing each other.

So assuming these data are accurate, that's a total 18,000+ recent cartel-related arrests and deaths. Dozens of tons of cocaine and marijuana have been captured over the same time frame, each with its own, jubilant, self-congratulatory press release. But nobody thinks any of this has done more than, at most, slightly raise the price of some drugs in some areas of the United States, and even those claims' veracity is disputable.

“What worries us as a society is that even if this year nearly 50 tons of cocaine have been seized, most of the traffic of narcotics is not detected, so the perception of impunity and corruption continues to be very high,” María Elena Morera, president of Mexico United Against Crime, an advocacy group, told the New York Times.

So if fifty tons of cocaine seizures, 4,000 deaths and 14,000 arrests weren't enough to reduce drug trafficking in Mexico, how many people must be arrested or killed before the problem is under control? There must be many, many more people smuggling drugs through Mexico if reducing the cartels' workforce by that amount hasn't made a major dent.

These are not just 18,000 criminals, they're 18,000 people who worked in one of the more lucrative Mexican industries, meaning that, en masse, the drug war has a negative effect on Mexican domestic demand the same way 18,000 middle-class layoffs in a major industry might effect the US economy. That's a lot of folks.

That large number of arrests must also mean they're mainly catching "little fish" with little tangible effect on overall drug supplies. Most of the bigger fish captured, with one or two high-profile exceptions, have come from the Gulf Cartel, which has led me to wonder if the overall strategy of the Mexican government might not be to pick a side in the cartel wars instead of to stop all illegal drugs. The quickest way to reduce violence in Mexico, which after all stems mainly from competition among rival illegal businesses - would be for the government to enforce an informal monopoly for one side or the other, probably the Sinaloa drug syndicate. By comparison, the Sysiphian task of halting all illegal drugs likely cannot be accomplished any time soon, even if it's what the US might prefer.

Time will tell which way Mexican President Felipe Calderon is headed.

Looking for leadership: Meurer turns down TYC slot running agency mired in crisis

I heard a rumor last night from a reliable source that the Governor offered retiring Democratic Travis County District Judge Jeanne Meurer a job "running" the Texas Youth Commission (my snitch didn't know if it was the commissioner or the conservator's slot), but she turned it down because she would not have the authority or budget to fix the agency's problems. The source speculated Meurer may instead run for Travis County District Attorney instead when long-time incumbent Ronnie Earle steps down from the post.

I have to say, if the rumor's true, at this point it's hard to blame Judge Meurer for passing up TYC. Without significant resources and enough clout to reverse many bad decisions and hires from the last nine months, the job would be an endlessly ungratifying headache. (Maybe they'll ask Michael Griffiths next - they really need to find somebody with real-world juvie experience, and give them enough power to fix things.)

The biggest problem facing the TYC administration and any future commissioner is the system-wide understaffing crisis, the gravity of which is highlighted in a story today coming out of the Ron Jackson unit in Brownwood.

Sixteen juvenile correctional officers resigned from the STAR unit at Brownwood, supposedly over disputed overtime. But once the overtime question was resolved, none of the 16 agreed to return to the STAR team, which makes me think their concerns were more substantive than media reports let on. Reported AP:

Their departure last week leaves 10 members on the STAR team at the Ron Jackson Unit in Brownwood. If a disturbance or other emergency occurs, off-duty corrections officers or law enforcement agencies will be called, [TYC spokesman Jim] Hurley said.

A couple of questions about this immediately come to mind: First, Hurley is wrong to downplay the Brownwood STAR team losing 60% of its members at a whack. If this begins a trend, it spells trouble. Hurley said the agency just needs to "replenish the ranks," but the whole agency is understaffed, so that's much easier said than done.

Also, outside law enforcement agencies aren't trained to deal with TYC youth, and off-duty correctional officers may not have received necessary training to participate in the STAR team.

In any event, relying on off-duty employees or outside agencies to respond to emergencies lengthens the potential time a crisis must be left swirling at the facility before the STAR team can get there, worsening safety for youth and staff on the ground.

(UPDATE/CORRECTION: Contrary to the AP report, all 16 Brownwood STAR team officers in question have re-applied for their jobs, but have not been reinstated because TYC CO insists they re-submit to testing and PT. See the comments for more detail.)

If TYC cannot reverse understaffing trends, it won't be long - perhaps sometime next year - before the only option left will be to bring in the National Guard or state police to keep staffing levels at statutorily mandated 12-1 ratios. Already caseworkers are serving as guards, necessarily shortchanging their regular duties. The fact that the agency is now cannibalizing unfilled positions to pay for overtime shows the Legislature simply did not budget enough money to increase staffing to mandated levels.

At some point, pay needs to be increased - if a dangerous job guarding criminal youth pays comparable wages to the WalMart, who wouldn't choose to work at WalMart? But more importantly, the agency's employment culture must improve to reverse mounting losses among critical workers. The current management crew can't accomplish that, IMO, so I'm glad to hear Gov. Perry's people are out beating the bushes for better leadership. It'd be a great Christmas gift for TYC employees if they could get a new boss before the holiday along with their belated overtime checks.

Nominate Texas worst jail "hellhole"

Here are a few disparate items that deserve Grits readers attention:

"Hellhole" nominations
The Texas Jail Project is seeking nominations for which county jail deserves the appellation "worst hellhole" in Texas. Let 'em know which county jail you think is worst. (My guess: Dallas will be hard to beat.)

Drug court trend expanding across Texas
The Texas Observer has a feature interviewing drug court judges in Travis, Dallas, Nueces and Montgomery Counties.

TYC pepper spray policy temporarily changed
At least until next week when a new policy comes before a public hearing on Monday, the Texas Youth Commission has agreed to a temporary new pepper spray policy. See Grits testimony submitted for Monday's hearing, and a just-published public policy report from the Texas Criminal Justice Coalition.

Re-entry group expands scope
See a nice profile of re-entry work by the Dallas-based Mothers (and Fathers) for Advancement of Social Services, and their recent expasion to Fort Worth.

New duds
Texas prison guards will get a new uniform.

Prison Museum to Host Forum Featuring Texecution Witnesses on Lethal Injection's 25th Anniversary

Via The Back Gate, a press release from the Texas Prison Museum in Huntsville lets us know about an event next week that I hope The Back Gaters will attend and blog about:

To mark the 25th anniversary of lethal injection in the United States, and to help shed light on an issue up for Supreme Court review in early 2008, Bill Crawford (the Austin-based author of Texas Death Row: Executions in the Modern Era) will moderate a panel discussion on Friday, December 7, 6:30 p.m., at the Texas Prison Museum in Huntsville, Texas, titled “25 Years of Lethal Injection: What Have We Learned?”

The featured panelists include reporter Michael Gracyzk, who has viewed over 300 executions during his career as a journalist; former Public Information Manager with the Texas Department of Criminal Justice Larry Fitzgerald, who has witnessed over 200 executions; Texas State Prison Museum director (and former warden of the Walls Unit) Jim Willett, who has witnessed over 90 executions; and Paula Kurland, a victims’ rights advocate who served on the Death Penalty Initiative with the Constitution Project in Washington, D.C..

“Since recordings of executions aren’t maintained, the memories of those who have witnessed executions are critical to understanding lethal injections,” said Crawford. “In only a few months, the Supreme Court will determine whether lethal injection violates the Constitutional protection against cruel and unusual punishment. Though the panel is timed to coincide with the first lethal injection 25 years ago, it’s also coming at a time in which Americans are increasingly aware of the controversy surrounding this method of execution.”

The panel discussion event in Huntsville is part of an exhibit at the Texas Prison Museum entitled “Texas Death Row: Executions in the Modern Era,” which will be on display at the Texas Prison Museum throughout the month of December.

The good news, says tiny Elsa PD: None of our officers have been arrested for smuggling drugs this year

Since I try to track drug-related law enforcement corruption along the Texas-Mexico border on this blog, it's worth putting a bow on a story Grits first described last year, via DRC Net:

In McAllen, Texas, a former Elsa police officer was sentenced November 21 to seven years in federal prison after being caught in an undercover bribery and drug string. Herman Carr, 46, had earlier pleaded guilty to taking $5,000 in August 2006 to provide protection for a vehicle he believed was carrying 11 pounds of cocaine. The drug dealers were actually FBI agents. Carr is the second former Elsa officer to go down in the sting: In May, Ismael Gomez, 27, got an eight-year sentence for taking $2,500 to protect a supposed 22 pound coke shipment.

Elsa PD was also the subject this year of a federal consent decree (pdf) over sexual discrimination and retaliation charges.

Describing the sentence, the McAllen Monitor optimistically concluded, without apparent irony, "Elsa’s police department has had considerable turnover since the men’s arrests; however, none of its officers has faced drug-related charges this year." That last line sounds almost like bragging, given what's happened in the last year at the tiny, rural department!

Defending the Damned on the Cheap: Do Public Defenders Deserve Bigger Budgets?

Via Gideon, Radley Balko has a book review at Reason in which he argues that public defender offices, far from deserving scorn, arguably deserve bigger budgets in light of what we've learned from dozens of recent DNA exonerations about how innocent people come to be convicted.

Yes, that's a senior editor at Reason magazine, the small "l" libertarian bastion, calling for increased spending on a government program. (I've been scanning science articles on Google News ever since looking for the inevitable story about genetically engineered, winged pigs.) Writes Balko:

underfunding, coupled with the threat of mandatory minimum sentences and an increase in the number of crimes on the books, results in an overwhelmingly high number of plea-bargained admissions of guilt, as prosecutors look to pad conviction rates and defense attorneys have no choice but to slough off burdensome caseloads. A 2005 report from the Texas Office of Court Administration, for example, found that less than 1 percent of felony cases in Texas ever make it to trial. The rest are resolved by plea bargains. The federal courts aren’t much better: Only about 10 percent of felony cases go to trial. In state courts across the country, it’s 7 percent.

“I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented,” the federal appeals court judge Richard Posner writes in his 1999 book The Problematics of Moral and Legal Theory. But Posner, chief judge of the U.S. Court of Appeals for the 7th Circuit and one of the country’s most renowned legal scholars, isn’t much bothered by this. “If we are to be hardheaded we must recognize that this may not be entirely a bad thing,” he says. “The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A barebones system for the defense of indigent criminal defendant may be optimal.”

Posner’s position is widely shared. Indeed, most advocates of limited government would probably instinctively resist the idea of devoting more public resources to the legal representation of indigent defendants. But perhaps it’s time to reconsider that resistance.

The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it’s also obliged not to violate our rights in the process.

If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.

Of course, in most of Texas indigent defendants are represented by private attorneys, who in some cases are paid more for entering into a plea bargain than for seeking a dismissal of the case!

Balko quotes Judge Posner declaring that poor-quality indigent defense may not be a bad thing "if we are to be hardheaded." What he left unsaid is that to be hard-headed about providing quality defense counsel, we must simultaneously be hard-hearted toward innocent people caught up in the system who do not receive a zealous defense.

There is little middle ground here - the overarching design of the adversarial system assumes each defendant receives an attorney's competent and zealous representation, but at the micro-level, underfunding thwarts that goal and makes mockery of claims to sure justice. Since Posner wrote those words at the end of the last century, advancements in DNA technology and the resulting exoneration of more than 200 people (so far) put the lie to his assumption that our system has "reduce[d] the probability of convicting an innocent person to a very low level."

Much has changed since then. We now know to a certainty that eyewitnesses frequently misidentify suspects who they didn't know previously, and that the failure to use "double blind" lineups can cause police assumptions to influence witnesses. We know that crime labs make errors and that forensic science is not the same as objective science. We know that informants will lie to reduce culpability for their own crimes, and that the average person only recognizes a lie when it's told to them about half the time, including prosecutors, judges and jurors.

Finally, as Balko points out, we know that public defenders and private counsel for indigent defendants are underfunded and frequently fail to adequately vet the system for flaws.

All of the primary reasons for wrongful convictions - faulty eyewitness testimony, mendacious snitches, sloppy crime lab work, slacker defense counsel, police or prosecutorial misconduct - inarguably occur in other cases besides the few where DNA evidence was gathered or preserved. (Jeff Blackburn, Chief Counsel at the Innocence Project of Texas, tells me he expects more exonerations to come before the Texas Legislature reconvenes in January 2009.) With more than 150,000 adults incarcerated in Texas prisons alone (more than 2 million nationwide), who believes the same flaws in the justice system haven't trapped hundreds or even thousands more people whose names were never cleared?

We need procedural reforms in all these areas, but Balko's right that the one element holding them all together is quality defense counsel. Creating new procedural tools to protect innocence won't help if defendants' lawyers don't aggressively avail themselves of them.

When even Reason magazine thinks government is underspending on one of its functions, it's hard not to think we might have reached a tipping point in regards to changing public perception in the wake of 200+ DNA exonerations.

Serious question, flippant answers: What would Jesus do about the death penalty?

Via Doc Berman, the Chicago Tribune's political blog has the story of GOP presidential candidates responding to a question from their "YouTube" debate: What do you think Jesus' position would be on the death penalty? The candidates punted on the substance, but it's a damn good question. Said Baptist minister and former Arkansas Governor Mike Huckabee, "Jesus was too smart to ever run for public office. That's what Jesus would do."

That's a smarmy politician's answer, dodging a legitimate query instead of addressing it seriously. (The Texas Moratorium Network has the video.) What would a more honest response look like?

Let me start by admitting we cannot know for sure. The Old Testament emphatically supported the death penalty, and certainly Jesus declared he did not come to destroy the law but to fulfill it.

At the same time, New Testament teaching replaced the morality of "an eye for an eye" with "turning the other cheek." Certainly Christ intervened to stop the stoning of an adulteress, but without knowing more, can we universalize from that one example? On the cross Jesus forgave the thief next to him, but despite his divine powers over death, still allowed him to perish. Trying to divulge Jesus' position on capital punishment from these philosophical hints is like guessing the number of angels dancing on the head of a pin.

As Doc Berman pointed out, Jesus himself was subjected to capital punishment at the hands of the Roman Empire, though Christians believe he died sinless. If that is the case, then Jesus was an innocent man executed wrongfully. One imagines, then, at least at some point on Good Friday as he hung innocent on the cross, paying with his life for the sins of others, Christ must have endured some misgiving about the death penalty. Why, I wonder, didn't Rev. Huckabee mention that?

At a minimum, I wish this question had sparked a debate among candidates about the bevy of recent DNA exonerations and the likelihood that more innocent people are still on death row or rotting away in prisons.

Another clue: Early Christian societies considered snitching in death penalty cases an act that justified permanent, lifetime excommunication, damning the informant's soul to eternal hellfire.

Without question we can say that Jesus would not have supported capital punishment (or any criminal penalty) without at least two witnesses supporting charges against the defendant. Both Christ and the Apostle Paul affirmed the tradition from Mosaic Law that "two or three witnesses" were required to convict someone of any offense. Given that, and assuming the verity of the biblical passion story, I don't believe Jesus would have supported executions based on a single person's testimony or on the testimony of a compensated informant (like, say, Judas).

From the Sermon on the Mount, we learn that Jesus considered merely holding anger against someone as grievous an act as killing. (Matthew 5:21-26)

You have heard that it was said to your ancestors, 'You shall not kill; and whoever kills will be liable to judgment.' But I say to you, whoever is angry with his brother will be liable to judgment.

So while this passage insists that murderers should be "liable for judgment," so should those who carry anger in their hearts. The same judgment? Who knows? While we don't know what "judgment" Christ considered proper for murder, we can say Jesus would not support retributive arguments in favor of the death penalty. He would have considered the emotional component that causes people to demand retribution antithetical to the tenets of peace taught in the Sermon on the Mount.

What do the major Christian denominations believe about the death penalty? I found this useful compendium of the positions on capital punishment for the major US denominations. Roman Catholics, American Baptists, Methodists, the Evangelical Lutheran Church of America, Presbyterians, Episcopalians, Reformed, Eastern Orthodox, and the United Church of Christ all officially take an "abolitionist" or anti-death penalty stance.

I don't honestly know what Jesus' position would have been on capital punishment, but I do know this: Whether Jesus supported the death penalty, without question he established a requirement that his followers visit those in prison, including the condemned - perhaps one of Christ's least-regarded dicta among modern Christians, sad to say.

I like the YouTube debate format. Average people ask questions the professional journalists would never even think to bring up, and the results are frequently telling even when the questions get dodged. While the YouTuber's theological question remains unanswered, it's obvious that Christ had more empathy for prisoners and the condemned than Huckabee and the other pols on the stage demonstrated last night, that's for sure.

MORE/BLOGVERSATION: On Huckabee, Christ and the death penalty, from A Blog From Hell:

Well, Jesus may not have sought public office, (like being King of the Jews or something), but he seemed to have something to say about the death penalty, something to do with only those who haven't sinned should be "casting the first stone." ...

Huckabee tried to say that "forgiveness" doesn't mean you don't punish people. The hell it doesn't! Forgiveness doesn't mean anything if you're still punishing the person you are "forgiving." Saying you are doing both is Orwellian bullshit. The New Testament has a kind of economic model, forgiving sins is like forgiving a debt. You can't make someone pay a debt and forgive the debt at the same time. Forgiveness is not about you not feeling angry when you end someone's life.

Perhaps when Huckabee got off the dais he found a better answer to the question on his voice mail - the incident reminded Think Progress that Huckabee occasionally receives phone calls from God. At the Atlantic Online, Andrew Sullivan says "To use such a cheap line to score a laugh in a political debate is not something I find particularly admirable." Arkansas Blog recalled another instance where then-Governor Huckabee responded with similar flippancy to the same question, declaring that Jesus' silence on the topic implied his approval, which AB points out is a unique form of biblical exegesis, indeed. What kind of theology are they teaching out there at Ouachita Baptist University, one wonders?

Pepper Spray at TYC: A Report from the Texas Criminal Justice Coalition

The Texas Criminal Justice Coalition's Juvenile Justice Initiative has released a detailed public policy report entitled, "Pepper Spray in the Texas Youth Commission: Research Review and Recommendations" (pdf). I've not had a chance to read it yet, but wanted to post a link to make it available to Grits readers. Congrats especially to report author Leah Pinney, a past intern of mine gone on to bigger and better things, for her hard work on the project.

Lawsuit: Private mercenaries, police trainers in Iraq abuse steroids

If steroid abuse is a problem among police officers, who is surprised to hear allegations that up to 1/4 of private mercenaries employed by the Blackwater Corporation in Iraq may use illegal steroids or other "judgment altering substances"? Those charges arose in a lawsuit filed against the mercenary firm in Washington, which claims that the firm tolerated "widespread steroid abuse" among its designated "shooters" in Iraq.

Blackwater denies the allegations, but plaintiffs' attorneys say company employees have confirmed the company's knowledge of employee steroid use in depositions under oath. See the news story from CNN.

I'll bet this isn't just a problem at Blackwater. One of Blackwater's principal competitors, Dyncorp, operates US anti-drug operations in Afghanistan and South America and is the most likely beneficiary of President Bush's proposal to send private mercenary firms to train Mexican police. One wonders if Dyncorp employees faces similar problems with illegal steroid use?

Do we really want to send a bunch of juiced up mercenaries to Mexico only to suffer some 'roid-rage induced public relations fiasco?

More and more I think it's absolutely absurd that Texas plans to steroid test high school athletes but doesn't require testing for police officers, which I've argued previously "leaves officers open to coercion, blackmail, or at a minimum wrongly divided loyalties." The exact same argument can be made for steroid-using mercenaries if the US decides to send them to Mexico. But at least that offensive lineman in high school won't get an unfair advantage in a football game. Talk about misplaced priorities!

Bexar County can't keep contraband out of bricks and mortar jail: Would 'tent jail' be secure?

Reacting to news that a Bexar County Jail employee allegedly sold cocaine, marijuana and cell phones to inmates, Sam over at Man O' Law makes an excellent point: If they can't keep drugs and contraband from being smuggled into a jail built of bricks and mortar, what makes the new Sheriff or County Commissioners think they can keep a "tent jail" secure?

As I've written before, there's a reason prisons have walls.

Justice system should focus resources on "power few" criminals who drive most crime

I wonder if these two items are related?

First, over at Corrections Sentencing, Michael writes that:

A new study suggests that too much money is wasted on low-risk crime targets. Both crime and prison populations could be reduced dramatically by focusing on the “power few” criminals who commit the most crime, according to Lawrence Sherman, Director of the Jerry Lee Center of Criminology at the University of Pennsylvania and Professor of Criminology at Cambridge University, UK.

Using data across a wide range of research, Sherman shows that most crime is committed by a small fraction of all criminals, at a tiny fraction of all locations, against a tiny fraction of all victims, during a few hours a week. By focusing police, probation, parole, rehabilitation, security and prison resources on these “power few” units with the most crime, the study shows how society could stand a far better chance at crime prevention without raising costs.

“Billions of dollars in criminal justice costs are wasted each year on people and places with almost no risk of serious violent crime,” said Sherman, “while the high-risk targets receive far too little attention.” Citing rising homicide rates in Philadelphia since 2002, his research shows how more rehabilitation for a tiny number of offenders may have been able to prevent many of the murders.

The study shows that the key to making the most out of these extreme concentrations of crime would be to test prevention strategies aimed only at these few crime locations, times, situations, victims or offenders.

Then, in the Dallas Morning News, I find this item: "Man held in hundreds of Dallas County burglaries." Certainly focusing on suspects who police believe committed hundreds of similar crimes makes a lot more sense than some of the more random enforcement tactics police engage in, e.g., conducting "fishing expeditions" at traffic stops.

OTOH, this could be emblematic of a different problem - the periodic tendency for Dallas County to charge and convict innocent people. "I've been late paying my mortgage every month for the last three years," said the suspect. "If I broke into 200 homes, I wouldn't be in bankruptcy. ... I'm barely eating." Good point.

Whatever the truth of the charges against this one defendant, it struck me as interesting to read both of these items and realize the Dallas burglary case, if the fellow turns out to have done what police say he has, more or less exemplifies the empirical data and theoretical conclusions in the study described by Science Daily ("Less is more in fighting crime," Nov. 26).

In any event, prioritizing enforcement resources and incarceration space for more serious offenders makes enormous sense from a public safety perspective. I've never understood why the idea is often portrayed as such a radical thing - as former House Corrections Chair Ray Allen used to say, it's smarter to focus limited criminal justice resources on people who we're afraid of, not on those whom we're only "mad at."