Tuesday, May 05, 2009

A Big Idea for Texas Monthly: Slash Texas' prison system

I neglected to mention that Texas Monthly published a short blurb I wrote in their May "Ideas" issue - the one with Joel Osteen on the cover - touting "82 various and visionary ideas for how to make Texas a better place (Better than it already is, of course, which is pretty darn good)." My piece was in the printed magazine, but here are the ones they published on the web.

When he asked for my contribution, TM editor Jake Silverstein said the idea proposed "should be as daring, unusual, and ambitious as possible (even to extent of being entirely unworkable, so long as it’s a conversation-starter)." So here's what they published from me (at least, after their fact checkers updated the numbers):
Texas should dramatically slash its prison population and eliminate a majority of felony crimes. We have criminalized too many different activities: Texas has 2,324 separate felonies on the books, including 11 involving oysters. From 1978 to 2008, Texas's population increased 80 percent, while the prison population increased 595 percent. If prison growth had matched population growth, around 40,000 would be in Texas prisons today - instead the number is about 155,000. Texas must stop trying to manage every social problem through the justice system and re-empower its civil courts and regulatory functions to handle more conflicts among citizens.

Monday, May 04, 2009

Needle exchange bill reaches milestone Tuesday

Legislation to authorize local-control needle exchange programs will reach a milestone Tuesday when SB 188 finally receives a hearing in the House Public Health committee. The previous chair, Dianne Delisi, had singlehandedly blocked the bill in 2007 after a bipartisan supermajority of senators approved it. But this year's Chair Lois Kolkhorst greenlighted a hearing and promised sponsors the legislation will get a committee vote.

A majority of Public Health Committee members already voted for needle exchange once. The House had a vote in 2007 on an amendment by Rep. McLendon to allow a needle exchange pilot in Bexar County that tells us a lot about the bill's likely reception on committee. Here's how the committee members voted on that 2007 amendment:
Ayes: Naishtat; Coleman; Gonzales; Hopson; McReynolds, King, S;

Nays: Laubenberg, Truitt

Absent: Kolkhorst; Davis, J;

Present not voting: Zerwas
Though Rep. Kolkhorst wasn't there for the 2007 vote, the fact that the chair decided to give the bill a hearing shows she's at least open to the idea, and if she allows the committee to vote on the bill, by this count the votes are there to pass it.

Two other notable, key "aye" votes for needle exchange from 2007 pop out from the list: Calendars Committee Chairman Brian McCall and House Speaker Joe Strauss. That makes me hopeful SB 188 will make it to the House floor for a vote if it clears the Public Health Committee.

Needle exchange isn't a cure all, but it helps at the margins to prevent disease, reduce public health costs and make it more likely program participants access drug treatment. According to a fact sheet from the Texas Department of State Health Services, found via the blog Sifting the Haystack:
  • More than 14,000 Texans got HIV when they were injecting drug users.
  • About 240,000 cases of hepatitis C in Texas are linked to sharing syringes.
  • Preventing 100 new cases of HIV would save $38,000,000 in medical costs.
  • Syringe exchange could prevent 100 new cases of HIV per year in Texas.
  • A study comparing 81 cities found the HIV infection rate decreased 5.8% per year in cities with SEPs and increased by 5.9% in cities without SEPs.
SB 188 is scheduled for a hearing in the House Public Health Committee on Tuesday, May 5, 2009, at 8:00 AM in E2.012 in the Texas Capitol. Go here to watch it live when once it begins.

See prior, related Grits posts:

Texas considers eliminating LWOP for juvies, two steps ahead of SCOTUS

Amazingly, for once Texas appears to be ahead of the curve regarding reforms to capital sentencing, with the state Legislature poised to potentially eliminate life without parole entirely for juveniles, even as the US Supreme Court has decided to consider whether to ban the practice for juveniles in non-murder cases.

SCOTUS today agreed to hear two cases out of Florida that will determine the constitutionality of sentencing juveniles in non-murder cases to life without parole (LWOP), Reuters reports:

The nation's high court agreed to hear two Florida cases, one involving a 13-year-old convicted of raping an elderly woman and the other involving a 17-year-old who took part in an armed home-invasion robbery while on probation for an earlier violent crime.

Their lawyers appealed to the Supreme Court and argued that life imprisonment, without the possibility of parole, for juveniles whose crimes did not involve murder violated the Constitution's ban on cruel and unusual punishment.

The Supreme Court in 2005 abolished the death penalty for juveniles.

The justices will consider in the two cases whether to extend that ruling to sentences of life without parole for juveniles convicted of crimes other than murder.

Doc Berman notes that in one of the cases before SCOTUS, a Florida youth sentenced to LWOP was actually sent to prison for a probation violation (!) after earlier committing armed robbery.

Meanwhile, Texas law only authorizes LWOP for juveniles in capital murder cases, but the Texas House Criminal Jurisprudence Committee on Wednesday will consider SB 839 by Hinojosa to eliminate LWOP for juveniles entirely and substitute a 40-year minimum sentence. Most observers believed clearing the Senate was this bill's biggest hurdle and the legislation has an excellent chance of making it through the process and becoming law, thanks in part to assistance from some unlikely supporters.

It's nice, for a change, to feel like our state is one step ahead of SCOTUS on these matters. Perhaps it's possible, just this once, for Texas to adjust our most extreme sentencing practices without first enduring a series of embarrassing scandals and bench slaps from the federal courts.

SCOTUSBlog has the relevant legal materials from the Florida cases.

Declining Houston crime doesn't justify politicized rhetoric

Crime in Houston is substantially down, reports the Houston Chronicle's Bradley Olson ("Houston crime is down but not the fear of it," May 4), but demagoguery by media and politicians about crime is on the rise:

In the words of a statistician, the decrease in criminality appears to have an inverse relationship, at least for now, with political rhetoric on crime, which has ramped up in recent months.

“It’s probably very difficult for any politician to acknowledge that the problem of crime is decreasing, because that undermines the importance of the issue,” said Dennis Longmire, a professor of criminal justice at Sam Houston State University who has studied public attitudes toward crime. “Politicians use a fear of crime to garner support and get voters’ attention.”

Former Houston police chief and Mayor Lee Brown told the paper, “This always happens ... It becomes a political issue, rather than the reality of what a city is going through. It appears to be as if [the politicians] haven’t looked at what the reality is … The objective is to draw attention to themselves and get voters.”

Company associated with chair of white-collar crime panel subject of fraud investigation

Man alive! You can't make up ironies like this one:

The chair of the White Collar Crime Subcommittee of the Texas House Criminal Jurisprudence Committee is affiliated with a company that's been accused of securities fraud by state and federal white-collar crime investigators, Texas Monthly's Nate Blakeslee reports. Nate poses the question thusly: "How does a man like Allen Fletcher, a retired police sergeant who spent years heading a white-collar-crimes unit at the Houston Police Department, find himself in business with a group of alleged con artists?" Ouch!

It's too early to speculate whether placing Fletcher in charge of white collar crime policy amounted to putting a fox in charge of the henhouse: But I'll bet if Chairman Gallego had known this backstory when he made the appointment he would have chosen someone else.

For his part, the freshman Republican "said he was a victim of deception in that case as well and denied any wrongdoing." A federal case against his business partner was later dropped but could be refiled. (Read the full story as my overview here does not do it justice.) For now, I'll take Fletcher at his word that he was involved in no wrongdoing until I see evidence to the contrary.

That said, Nate Blakeslee is the ace reporter who first broke the story about the Tulia drug stings that led to his excellent book-length investigation of the case. He later was first to report about alleged sexual abuse at the Texas Youth Commission that turned that agency on its ear. So when Nate raises a red flag, in my experience, it generally behooves a wise observer to pay attention.

On the Criminal Jurisprudence Committee, Fletcher has seemed like a nice guy with no particular axe to grind. He's at times more thoughtful than some others on the panel but, unsurprisingly for an ex-cop, can also exhibit a greater degree of tunnel vision than I might prefer. (I attribute that to being a freshman; people tend to grow into these jobs.) He's been a consistently conservative vote - pretty much what you'd expect from someone whose political patron is state Sen. Dan Patrick, who donated $68K in radio ads and direct mail services to Fletcher' campaign and whose chief of staff was Fletcher's consultant.

The first time I met Rep. Fletcher earlier this year, before committees had been appointed yet and not long after the legislative session had begun, the first thing he said to me upon learning I worked for the Innocence Project of Texas was that, as a former police officer, he knew that the hardest thing in the world was to undo a false conviction because once someone was wrongly accused, suspicion would forever continue to hang over them. So I want to give him the benefit of the doubt and not presume without evidence that Fletcher knew about his business partners' alleged misdeeds. (Though arrests were made three months before his primary election, Blakeslee reported, the "raid was not reported in the press, and Fletcher was not publicly linked to the investigation.")

However, Fletcher and his partners had a checkered history together and Blakeslee's article at a minimum raises questions about Fletcher's judgment, who he associates with and how he runs his businesses. And there are parts of Blakeslee's story - like an elderly cop friend who loaned Fletcher $50,000 and died without getting it back - that could be immensely damaging if run on a TV ad or via direct mail.

Which is the problem with this story coming out now - AFTER the fellow has been chairing a legislative subcommittee on white-collar crime for two months, for heaven's sake. This is the kind of story you wish the local press or an opponent's campaign had discovered during election season so it could be discussed when voters could do something about it instead of bringing it up at crunch time late in session.

With the number of newspapers and professional reporters in a free fall, increasingly it will fall to political campaigns and parties to vet opposing candidates running for public office because there's no longer an independent institutional player (i.e., a local newspaper) performing the function. Clearly Fletcher's incumbent opponent - Republican Corbin Van Arsdale - didn't invest enough money in opposition research (a business I was in myself for a dozen years and 68 campaigns). This appears to all be stuff they could have found through routine records searches at the Harris and Montgomery courthouses if somebody had bothered to run the traps at the time.

MORE: Rick Casey at the Houston Chronicle has Fletcher's reaction to the Texas Monthly story.

Collin County prosecutors could let CCA off the hook for ethical morass in Charles Hood case

National CBS News last evening covered the Charles Dean Hood case, in which a Collin County prosecutor and judge conducted a secret romantic affair during Hood's capital murder trial. (The judge was later appointed by then-Governor Bush to serve on the Texas Court of Criminal Appeals with 8 of the 9 current members who now must decide whether to give Hood a retrial because of her misconduct.) CBS legal reporter Andrew Cohen offered this suggestion how prosecutors could help the CCA save face:
Now that Judge Brewer has found facts that establish the affair, and the efforts of two sworn public servants to hide it, it’s hard to identify a legal theory upon which Texas or its appellate courts could rely in denying Hood a new trial. Is there a more direct conflict of interest, negating the duty of impartiality and integrity in the criminal justice system, than what Holland and O’Connell did? Would you want to be a defendant in those circumstances? Would you trust the judge’s rulings, or the prosecution’s conduct, or the interaction between the two knowing that your adversary and tribune had been shacking up?

It’s possible, I suppose, that the appellate court could reject Judge Brewer’s legal conclusion that Hood’s attorneys can push this matter further even though all of the relevant events took place 19 years ago. It’s even possible, I suppose, that the appellate court will reject the interpretation Judge Brewer gave to the facts before them. But such poor judgments surely would themselves generate an appeal, and another, and maybe even a Supreme Court review. And before you know it we’ll be five more years down the road without any finality or certainty for Hood or the families of his victims, Tracie Lynn Wallace and Ronald Williamson.

Texas might consider doing here what the Justice Department did in the Ted Stevens corruption case. Faced with evidence of prosecutorial misconduct, the feds simply walked away from the conviction they obtained. Texas wouldn’t need to go nearly that far - no one (except for Hood) is suggesting that he ought to be freed or that he is necessarily an innocent man. All Texas would have to do, saving time and money, is agree now that Hood can and should be tried again before an impartial judge and an honest prosecutor. There appears to be ample evidence suggesting Hood’s culpability.

Texas then could use the money it saves fighting against a new trial for Hood on ensuring that its judicial officials understand what a conflict of interest is, and how it can be avoided, why it’s never okay for a judge and prosecutor to be romantically involved when they are working on the same cases together and why, worst of all, it’s never okay to hide such a material fact from opposing counsel. Hood’s judge and prosecutor lied, over and over again, to hide their affair. Any blame for the delay in bringing justice to Hood is their fault, not his, and Texas would be better off acknowledging that now.
Cohen raises a possibility I hadn't considered. Knowing what we now know, the Collin County DA could simply move to dismiss current charges against Hood in the interest of justice and seek to retry the case in front of a new judge, one who hopefully can contain their libido throughout the proceedings this time. That would be the right thing to do and it would spare the CCA the agonizing quandary they face now.

It would also seem anticlimactic. Part of me would like to see the high court forced to make that decision. If there are CCA members who believe it's okay to execute a man even if the judge and prosecutor were sleeping together during the trial, I want them to put their reasons on the record for history to see, and to judge.

RELATED: Rick Casey from the Houston Chronicle has a column on the case.

Sunday, May 03, 2009

Sharon Keller: Out by 2010?

I just put up a reader poll in the sidebar posing the question, "Will Texas Court of Criminal Appeals Presiding Judge Sharon Keller keep her job through the end of the year?" Possible answers are "Yes," "No, she'll be impeached," No, she'll be removed by the Commission on Judicial Conduct," or "No, she'll resign."

Until the House Judiciary and Civil Jurisprudence Committee hearing last week, I would have prognosticated the chances Judge Keller would be impeached were exceedingly slim. Now I'm not so sure. For starters, a GOP committee chairman gave Burnam's resolution a hearing - a signal that concern about the CCA's presiding judge to at least some extent crosses party lines, something that was also evident among committee members at the hearing.

What's more, Burnam vowed to bring a resolution to the floor of the House before the end of the legislative session to impeach Judge Keller, saying that a) it's a "privileged" motion, so the chair can't keep him from making it, and b) the Lege does not need a special "call" by the Governor to consider the matter after the biennial 140 day session ends on sine die. Assuming both things are true, he can probably force a record vote in some form or fashion. If the House votes to impeach, Keller would be temporarily removed until the Senate can hold a trial.

That makes her removal via impeachment at least a within-the-ballpark possibility, even if it's an outside shot. The House is closely divided at 76 Republicans and 74 Democrats. But if Rs start to bolt the stable, it wouldn't take very many to tip the balance, assuming most Dems vote to impeach (which may be, I'll admit, an invalid assumption). In any event, it's not a mathematical impossibility assuming Burnam is actually allowed to make the motion.

The next option - her ouster by the Commission on Judicial Conduct - also appears more likely than I'd have ever predicted. They've initiated formal removal proceedings and appointed a judge who will hold hearings beginning August 17. That looks pretty serious and they might force her removal as part of a settlement in the case.

Retirement would no doubt be the easiest way out - "I'm taking more time to spend with my family," etc, etc. - but something tells me Sharon Keller's not a quitter and I won't be surprised to see her fight it out to the bitter end.

Which leads us to the other option: That she makes it through the end of the year and just sticks out her term through 2012. There's a decent chance the House won't impeach her, after all, and an even better chance the Senate wouldn't convict her. And even if the Commission on Judicial Conduct Commission finds against her, there are remedies available to them (that they may be inclined to use) short of removing Judge Keller from office.

So this question seems like a tossup to me. I can't decide which outcome I think is most likely. Register your opinion in the sidebar poll and use the comments to say why you voted the way you did.

BONUS QUESTION: Since we're speculating, who might Rick Perry appoint to replace her?

The testilying 'Bushmen'

At the Dallas News, Tanya Eiserer had an excellent story this week ("Dallas police officer's testimony may taint dozens of cases," May 2) about Sgt. Randy Sundquist, a Dallas police officer officially branded a liar and banned from testifying in court after an administrative judge overturned his firing in the mid-'90s. But over time, apparently, everyone forgot, and he was promoted to supervise a unit responding to drug complaints - an unimaginably poor judgment to put a known liar in charge of such a unit. Now, dozens of cases in which he participated may be tainted.

Eiserer's story concludes with an especially fascinating account that suggests Sundquist's lying wasn't just malfeasance by a single officer but actually part of a pattern attributed to his entire unit:

In the mid-1990s, Sundquist and other patrol officers were known among prosecutors as the "Bushmen," a reference to the group's fondness for hiding in bushes when conducting surveillance on suspected drug houses in South Dallas.

Colleen Murphy, a prosecutor, testified in Sundquist's 1995 appeal of his firing that some prosecutors didn't want to work with the "Bushmen" because their cases "were just totally unbelievable."

"They'd see amazing things in the middle of the night with no lights, from far distances," she testified.

Internal police investigators found that Sundquist had conducted an illegal search. They also concluded that Sundquist lied to them, finding among other things that he couldn't have seen what he claimed to have seen when he said that a man was standing in a doorway with a bag of cocaine.

"I found numerous flaws in their testimony and very shoddy arrest reports," Sgt. Jose Losoya told internal investigators. "These omissions or flaws could prove disastrous in a court case. As it was, it gave the impression that the officers were falsifying their reports to get drug dealers at all costs."

After he was fired, prosecutors issued the first letter barring him from further court testimony. An administrative law judge subsequently reinstated Sundquist and reduced the punishment to a 40-day suspension. ...

Sundquist then worked in the communications division for about three years, receiving high marks. He eventually returned to patrol duties and was promoted to sergeant in 2002.

Senior police officials say that over time, the squad Sundquist supervised morphed into a de facto narcotics unit, frequently tasked with working drug activity complaints. Commanders instructed them to no longer work such cases earlier this year.

My question: How could anybody with a brain put this guy in charge of a unit working narcotics in 2002, which is the year AFTER the "fake drug" scandal broke at the Dallas PD?

In that egregious case, Dallas' official narcotics unit was caught collaborating with crooked informants who packaged pool chalk faked to look like cocaine in order to to set up illegal immigrants on felony charges. Combined with this tale about the testilying "Bushmen," history is beginning to cast an especially ugly light on Dallas drug enforcement during the mid to late '90s, and Sundquist's advancement in the department provides little evidence they've appointed leaders capable of changing the culture that led to that ugly scandal.

Dallas has released 19 innocent men so far based on DNA evidence, but 24 innocent people were set up in the Dallas "fake drug" scandal, and God knows how many innocent people the "Bushmen" put away.

Oh, THOSE assets: Judge Keller not so poor after all

After pleading poverty and asking the state to pay for her defense counsel in removal proceedings by the Texas Commission on Judicial Conduct, Court of Criminal Appeals Presiding Judge Sharon Keller has revealed $2.4 million in assets she previously had not disclosed in her state ethics filings. Said one wag, "If a defense attorney in a death penalty case before Judge Keller's court filed briefs as carelessly as Keller filed her financials, the client in question already would have been executed." Ain't that the truth?

Saturday, May 02, 2009

The Guessing Game

Watching an old movie with the missus this evening, this line made me laugh out loud:
"Without the facts, the science of criminal investigation is nothing more than a guessing game."

- Inspector Clouseau, The Pink Panther, "A Shot in the Dark," 1964
Indeed. :)

Sex parte: Coverup of judicial tryst tests CCA's ethical mettle

March and April were both memorably bad months for the Texas Court of Criminal Appeals, with the Commission on Judicial Conduct initiating removal proceedings against Presiding Judge Sharon Keller followed by the House of Representatives considering a resolution to impeach her. Unfortunately, the month of May didn't start off any better for Texas' high criminal court.

A state district judge ruled yesterday that death row inmate Charles Dean Hood did not wait too long to raise the issue that the judge and the prosecutor in his case were having an affair during his capital murder trial 19 years ago, setting the stage for the Court of Criminal Appeals to revisit misconduct allegations against one of its own former members. Judge Verla Sue Holland (pictured) was the trial judge in Hood's case and was later appointed to Texas' high criminal court where she served with 8 of the current members. According to the Plano Courier-Star ("Judge deems death row inmate did not receive a fair trial because of sex scandal," May 2), Judge Greg Brewer yesterday:
issued Findings of Fact and Conclusions of Law that concludes that attorneys for Hood discovered proof of Judge Vera Sue Holland and District Attorney Tom O’Connell’s secret, sexual relationship in a timely fashion and that Hood’s attorney are not at fault for not discovering this information earlier because the parties kept it secret for so long.

In his recommendation to the CCA, Brewer determined Hood should be able to raise judicial bias claims and that the affair between the judge and the district attorney violated his right to a fair trial.

Brewer found that Holland and O’Connell did not abide by their ethical and constitutional duties during the 1990 trial and conviction of Hood.

According to court records, Brewer states: “Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret,” and “Judge Holland and Mr. O’Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.”

In attempts to keep their affair secret, Brewer states “Mr. O’Connell misled habeas counsel during the successive state habeas proceedings and Judge Holland resisted counsel’s investigative efforts.”

The Findings of Fact and Conclusions of Law that Brewer made will now be sent up to the CCA for their review, where they can either accept or reject Brewer’s recommendations. According to Andrea Keilen, Texas Defender Service executive director, the CCA will either grant a new trial or find they are not bound by the trial-court recommendation.
I think Brewer made the right call: The judge and the DA had an ethical duty to disclose their misconduct and were playing hide-the-ball, so the defendant shouldn't be penalized for not knowing about the affair or not being able to prove it earlier.

Brewer's decision drops the whole mess right back in the lap of the Court of Criminal Appeals, which has done everything in its power so far to avoid directly ruling on their former colleague's ethical lapses. According to the Dallas News ("Old love affair gives death row inmate a new chance in 1989 murder case," May 2):

In his ruling, Brewer said Hood's legal team exercised "reasonable diligence" during the years, and that prosecutors' claim that the defense had moved too slowly was not valid.

"Judge Holland and Mr. O'Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship," the judge wrote.

Attorneys for Hood were unavailable for comment; assistant district attorney John Rolater declined to comment, citing pending litigation.

The case goes back to the court of criminal appeals for consideration on the judicial bias claim.

The court still is considering the other claim: that jurors were given contradictory instructions regarding mitigating circumstances, such as Hood's family background or childhood abuse, when considering the death penalty.

The CCA stayed Hood's execution based on the mitigation claim, not Judge Holland's affair, but that only bought the court time. Now the CCA must directly rule whether Judge Holland's misconduct justifies a new trial, which puts them in a particularly awkward spot.

Either they must publicly rule that someone most of them served with on the court is an unethical jurist who committed about the most egregious misconduct imaginable, or they must issue a public ruling that says a tryst between a judge and prosecutor during trial doesn't invalidate the results. Pick your embarrassment, in other words: Either admit you shared the bench for years with a grossly unethical colleague or issue a CYA ruling that would make the court even more of a national laughingstock than is currently the case.

The worst part: Charles Hood is as guilty as homemade sin. But the victim's family and friends now may have to endure a new trial as a direct result of misconduct by the prosecutor and trial judge. There's nobody else to blame: It's not like the pair didn't know what they were doing was wrong at the time it happened.

This case has become perhaps the most severe test imaginable of the Court of Criminal Appeal's ethical mettle - a test that so far they've miserably failed. In many ways it poses more of an embarrassment, even, than Judge Keller's "We close at 5" imbroglio because so many members of the court were colleagues of Judge Holland, so it will look like they're all protecting her if they don't go along with Judge Brewer's findings and give Hood a new trial.

If I were a betting man, I'd wager this will be a 5-4 ruling, but it's a tossup which way they'll go.

MORE: See Judge Brewer's findings - good stuff. He performed a thorough, credible review, which at this point is exactly what the public needed to see from the judiciary in this case. Now we'll see if the same can be said for how the CCA receives his findings.

ALSO: See coverage from the ABA Journal.

Friday, May 01, 2009

TDCJ closing visitation this weekend over swine flu

This notice has been place at the top of the Texas Department of Criminal Justice website regarding visitation this weekend:
As a preventive measure, the Texas Department of Criminal Justice is canceling visitation at all facilities for the weekend of May 2 – 3, 2009. Also, all programs that include visitors will be canceled for the weekend of May 2 – 3, 2009.

Further advisories regarding visitation shall be provided prior to visitation next weekend.

What is TDCJ doing about H1N1 (swine) Flu?

40% of Criminal Jurisprudence bills boost criminal penalties

As has probably been the case every legislative session in living memory, bills boosting criminal penalties account for a lion's share of legislation coming out of the Texas House Criminal Jurisprudence Committee this year. According to Emily Ramshaw at the Dallas News ("Texas legislature cranking out a variety of stiffer penalties for obscure crimes," May 1), "Of the more than 100 bills the House Criminal Jurisprudence Committee has endorsed this session, roughly 40 percent strengthen penalties for crimes or tighten restrictions on criminal offenders."

I was quoted in the story:
"These are easy bills to pass," said Scott Henson, a criminal justice expert turned public policy blogger. "No one can say, 'I'm for stealing air conditioners.' "

The article also quotes two senior Democrats who strongly disagree over the direction of the committee on enhancements, and while I respect each man immensely, I must say I disagree with both of them:

Rep. Pete Gallego, who chairs the Criminal Jurisprudence Committee, said there will always be some criminal enhancements, from lawmakers who "have an incident in their home district, and want to make sure their folks are protected next time."

But he said these measures are far outweighed by the progressive legislation his committee has endorsed, including bills to ban execution of criminals with mental disabilities, commission a study on the death penalty and broaden mentally ill offenders' insanity defense.

"Texas was once a 'lock 'em up and throw away the key' state," said Gallego, D-Alpine. "That's no longer the case."

Rep. Harold Dutton, D-Houston, couldn't disagree more. During the early 1990s, he said, "Texas was building more prisons than schools." Late that decade, lawmakers changed their strategy, rewriting the penal code to focus on diversion and rehabilitation. Now, Dutton says, Gallego's committee is taking Texas back in time, bowing to attorneys and special interest groups and sending more people to prison.

"Soon we're going to have not just 150,000 prisoners in Texas, we're going to have 250,000," Dutton said. "It's a committee that's hostile to average citizens and plum for prosecutors."

For Chairman Gallego to claim Texas is no longer a lock-em up state strains credulity, though certainly initial steps have been taken to turn the ship. But I think Dutton is wrong, too, that the Criminal Jurisprudence committee has somehow shifted gears to approve more enhancements than in the past.

Under Gallego's leadership the committee has voted out a lot more positive legislation than in 2007 when Criminal Jurisprudence was a virtual killing field for reform legislation and really was under the thumb of the prosecutor lobby. But let's be clear:

One in 22 Texans is still in prison, in jail, on probation or on parole - as many people as live in Washington, D.C. and more people than live in four US states are under control of Texas' criminal justice system at any given time. The number of people actually incarcerated has leveled off but until the sheer volume declines, it borders on absurd to say it's "no longer the case" that we rely too much on incarceration.

Texas has indeed shifted more resources toward prison diversion in recent years, but that's been done through other committees and the Criminal Jurisprudence Committee has simultaneously been working at cross purposes the whole time, continuously creating new felonies and boosting penalties for existing ones even while other legislators worked to limit prison population growth.

It's also worth noting that prosecutors aren't the main source of most so-called "enhancement" bills, special interest groups are. Shannon Edmonds at the Texas District and County Attorneys Association estimates only 3% of so-called "enhancements" are proposed by prosecutors, and in my experience that estimate is about right. As long as I've been watching this committee - under both Democratic and Republican chairmen - the trend of passing dozens of new penalty increases every session has looked very similar.

Who are these special interests? Just about all of them. The goat herders want harsher punishments for theft of a goat. Teachers and school districts want to criminalize disobedient students. The telecom and electric companies want higher penalties for theft of copper wire. Coastal fisherman want to boost penalties for poaching shellfish.

Every part of every code is laden with "enhanced" penalties for narrow special interests, IMO largely because the political class has an exceedingly limited view of government's role and a shortage of good ideas for how to curb behaviors that make us mad or infringe on commercial interests. It's not that special interests don't understand, at some level, that their enhancement bills don't work. After all, they keep having to come back asking for higher penalties year after year.

On the Senate side, Ramshaw's article failed to mention, Criminal Justice Committee Chairman John Whitmire has held the line much more strongly on boosting criminal penalties, largely because in the Senate the same committee is responsible for prison diversion efforts so it's easier to recognize the cognitive dissonance of doing prison reform and penalty hikes at the same time. For his consistent prudence on this matter, the state owes Sen. Whitmire an enormous debt of gratitude: If it were up to the House of Representatives, it's not an exaggeration to guess that perhaps 5 or more times as many new penalty hikes would become law every session.

I should also mention that Emily portrayed my view on the future of enhancements as slightly more pessimistic than is actually the case:

Henson, the former director of the American Civil Liberties Union's Police Accountability Project, said criminal enhancements aren't likely to end – ever – because they're an easy "freebie" for lawmakers. Though sending more people to prison costs the state money, lawmakers don't have to take that into account in their bills. It's how Texas has more than 2,300 felonies on the books, Henson said – 11 of them involving oysters.

"At this point, we've criminalized everything that remotely needs to be criminalized," he said.

My point, though, wasn't that it's impossible to "ever" put an end to the Legislature's enhancement fetish, but that the only way to stop it would be to put an accurate price tag on each new penalty hike.

Traditionally, the Legislative Budget Board tells the Lege that all penalty increases cost nothing and needn't be accounted for in the state budget. If LBB were disallowed from claiming more incarceration is free and there was a rule that every new penalty hike required new money in the state budget, I actually believe much of this foolishness would die down awfully fast.

As I've written before, penalty hikes almost always reflect a lack of imagination about other ways to influence human behavior. Increasing current penalties should be a last resort since it's among the least effective approaches - once something is illegal, after all, making it more illegal won't reduce the number of people who do it much. But usually penalty hikes are the first thing legislators want to do, even though by definition it's an admission that the same strategy (criminalizing the behavior) failed to solve the problem in the first place.

Thursday, April 30, 2009

Federal judge may reverse ruling on TYC firings

According to Emily Ramshaw at the Dallas News:
A U.S. district judge should overturn his ruling that the Texas Youth Commission improperly terminated two longtime employees after the agency's sexual abuse scandal, a federal magistrate has ruled.

Two weeks ago, Judge Orlando Garcia of San Antonio said the TYC erred when it forced Patricia Logterman and Corinne Alvarez-Sanders to resign or be terminated in mid-2007. The judge made the decision without input from the Texas Attorney General's office, which mistakenly failed to file briefs defending the TYC.

On Wednesday, U.S. Magistrate Judge Pamela Mathy said the court should reconsider the case in light of the state's belated argument. Mathy also said the women should be denied their request for summary judgment, meaning they'll have to take the case to a full trial. Judge Garcia is expected to sign off on the order.

"We are pleased with the magistrate's recommendation," TYC spokesman Jim Hurley said. "This case will now proceed and the merits will be heard."
See earlier Grits coverage from when federal District Judge Orlando Garcia had ruled in favor of the fired employees.

Johnnie Lindsey, Dallas DA, tell exoneration story on daytime TV

Go here to see a clip of DNA exoneree Johnnie Lindsey, Dallas District Attorney Craig Watkins, Lindsey's attorney Michelle Moore and Lindsey's fiance' appearing this morning on the daytime TV show, The View. (N.b., It made me download special software to watch the clip on ABC's site.)

Lindsey was falsely imprisoned for rape for 26 years; he was released last year and I was lucky enough to get to meet him in Dallas on the day he finally got out of prison. Along with about a dozen other exonerees, Johnnie's been down to Austin several times this spring to help lobby for changes to eyewitness identification procedures and other innocence reforms.

Lindsey's is one of the worst eyewitness ID cases I've ever heard of: Detectives on the case MAILED the lineup photos to the victim a full year after the incident occurred and that's how he was identified. Also, the jury in his case ignored especially strong alibi evidence - a time card and a work supervisor who said if Lindsey weren't there the business' work would have stopped.

Johnnie's case is profiled on the initial episode of the new TV show Dallas DNA which is currently running on the Investigation Discovery channel.

Via Unfair Park.

BS claim of the day: 'Justice doesn't have anything to do with revenue'

Arlington, TX was the lead example in a USA Today story about cities and counties boosting reliance on traffic ticket and fine revenue to raise money during the economic downturn ("Courts trying to nail fine dodgers," April 29):
Spurred on by tight budgets and long lists of delinquents, courts across the USA are stepping up efforts to catch fine-dodgers who, combined, owe hundreds of millions of dollars in unpaid fines.

Strategies include computer upgrades, bank account garnishment and special court hearings to recoup money owed for everything from parking tickets to penalties for felonies.

"Justice doesn't have anything to do with revenue, but payment of traffic fines is important to each city that has a court," says Arlington, Texas, Deputy City Manager Bob Byrd.

This month, a law firm started combing through 37,011 unpaid fine cases in Arlington, some dating back years, to focus on collecting some of the $7.6 million owed to the court, Byrd says.

Arlingtonstarted getting tough on ticket-dodgers last year, issuing warrants for people who didn't answer Class C misdemeanors after 30 days. According to Byrd, the city pulled in $10.5 million from the payments last fiscal year, up 40% from 2007.

What the article doesn't mention is that, in Texas, this is like shooting fish in a barrel. Thanks largely to excessive fines and fees associated with traffic offenses, more than 10% of Texas drivers have outstanding arrest warrants.

Houston crime lab only reported prosecution friendly evidence

New evidence in a Houston case may or may not exonerate a man convicted of rape, the Houston Chronicle reports ("Houston man likely to be freed after 22 years," April 30), but it definitely exposed egregious misconduct by Houston crime lab personnel:
A Harris County man who spent 22 years in prison for a rape that forensic tests now indicate he did not commit is expected to be freed Thursday.

Gary Alvin Richard's expected release is the latest case to discredit the Houston Police Department's crime lab, which has been under scrutiny since 2002 because of inaccuracies.

Prosecutors and Richard's defense attorney said they will ask a judge to set him free on bail. But the two sides differ on whether recent tests clear Richard of a 1987 rape conviction that resulted in a life sentence.

Defense attorney Bob Wicoff said the new tests prove his client's innocence. Prosecutors agree that the new results contradict crime lab evidence but said they do not know if Richard is innocent.

If cleared, Richard would be the fourth Harris County man to have his conviction overturned because of faulty forensics from the Houston crime lab.

His case was revived as part of a review of more than 150 cases involving questionable blood-typing evidence from the lab. Lawyers discovered in Richard's case that crime lab analysts had conflicting results, but reported conclusions favorable only to the prosecution.

This is another example of a "team spirit" mentality that contributes to many forensic-based false convictions. Houston crime lab workers apparently weren't acting as scientists seeking independent answers but considered themselves part of the prosecution's team, omitting lab results that might not favor the side they wanted to win.

Before this, in the most recent, previous exoneration in Houston, Ronald Taylor's false conviction also resulted from HPD crime lab errors; in that case, bad forensic analysis from the Houston crime lab corroborated an incorrect witness identification. These examples show how a too-close relationship between detectives and crime lab workers can corrupt forensic results. When lab workers are told too much information about the case - e.g., "a witness ID'd him and we just need you to confirm" - they go into the test with a bias about what the results should be.

Such lab errors (if you can call knowingly withholding exculpatory findings an "error") constitute double tragedies because not only does an innocent person go to prison, the real perpetrator cannot be brought to justice. In both cases, the statute of limitations had run out for the actual perpetrator by the time the exonerating evidence was discovered.

While Texas and Houston have both made initial investments and taken first steps toward improving forensic science (by spending money to boost capacity, e.g., and requiring accreditation), the state has yet to do what it takes to make crime labs more independent from law enforcement or figured out how to change the institutional culture that encourages this kind of behavior.

Related Grits posts
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Wednesday, April 29, 2009

While I'm out ...

Just a few odds and ends before I head out the door for the day:

Dallas DNA
I wanted to watch and review the new TV show Dallas DNA, which premiered last night, but apparently we don't get the Investigation Discovery channel in Austin. It's focused on the efforts of the Dallas District Attorney's Conviction Integrity Unit and appears to feature quite a few people I've personally gotten to meet over the last year working for the Innocence Project of Texas. Here's an AP report about the series and the debut of its first episode last night.

Exoneree reentry struggles
The Dallas News Crime Blog brings word of a conference for exonerees on Friday in Dallas to help them deal with their reentry struggles.

Will expanded DNA database contribute to crime solving backlog?
According to an ACLU of Texas fact sheet (pdf) about Sen. Dan Patrick's SB 727 (discussed on Grits here), a bill which would vastly expand Texas' offender-DNA database to include probationers and juveniles, "A recent report on the expansion of California’s DNA databank shows that expanding the database to all felons resulted in delays of six months or more in analyzing rape kits. In one case, a rapist attacked two more victims, including a child, while his DNA sat on a shelf awaiting analysis." The bill "will cost over $4 million in State Highway 6 funds for the Department of Public Safety to process the DNA" and require new fees from probationers.

Immigrant hunger strikers demanding right to bail
Democracy Now! has a feature on 100 hunger striking prisoners at a federal immigration detention center in Port Isabel, TX. A spokesman for the hunger strikers said they're demanding the federal government recognize their constitutional right to a reasonable bail while their civil court proceedings progress. The also interview Bob Libal of Grassrooots Leadership who blogs over at Texas Prison Bidness. Here's the video (the Port Isabel story is first up):


Should it be a felony to steal a $35 goat?

(Updated and corrected.) A senate bill being heard today in the Texas House Criminal Jurisprudence Committee - SB 1163 by Seliger - to me is a classic case study of how the road to hell (or at least bad public policy) is frequently paved with good intentions.

Sen. Seliger's bill would make it a third degree felony to steal any number of cattle, horses, or exotic fowl, regardless of their value a single goat, sheep, swine or any other type of livestock. Rep. Lois Kolkhorst is carrying the bill in the House. Judging from the witness list, this is a special-interest backed bill coming from the livestock industry.

CORRECTION (see below): My apologies for misreading the bill to increase penalties for goats, sheep and swine to a state jail felony when that was already the case. This penalty hike is only for cattle, horses, or exotic fowl and livestock, stealing one of which, if the bill passes, would be a third degree felony no matter what its value.

On the Senate floor, Seliger defended the bill as deterrence against cattle rustlers but it's actually written much broader than that. But these penalties are way too high for the offense. Does it make sense to give somebody a life-long "felony" tag for stealing a goat? Searching Craigslist I found a "Nigerian Dwarf Buck Goat" for sale in Caldwell, TX for $35. Should it really be a state jail felony if someone steals a $35 animal?

In addition to boosting penalties for petty livestock theft, Seliger's bill makes it an automatic third degree felony (2-10 years) to steal any number of cattle, horses, or exotic fowl, regardless of their value. But these animals are plenty valuable and the traditional framework for theft - the higher value the item, the heavier penalty - is perfectly reasonable for these purposes. There's no good reason at all to make a special exception for goats. Or cattle, or sheep. Or any other animal for that matter.

Beyond the policy madness of a felony rap for stealing a $35 goat, This bill raises a more general complaint I have about such legislation: The political process is not honest about what it would cost. As with all bills expanding incarceration at the Texas Legislature, the official "fiscal note" for SB 1163 claims the legislation is a freebie to taxpayers, but obviously that is false.

Clearly SB 1163 will categorize more petty thefts as felonies which means more people will enter state prisons a few people will receive longer sentences for the offense, but the Legislative Budget Board says there would be no fiscal impact from this bill. That's just silly: Boosting a new category of offenses to third-degree felony status means the state now must pay more incarceration costs for anyone convicted (at around $18K+ per year in Texas). And former Class A misdemeanors that will now be state jail felonies would cost the state incarceration dollars instead of the counties.

According to the bill's criminal justice impact statement, "During fiscal year 2008, five offenders were admitted to prison and 14 offenders were placed on felony probation for theft of livestock." But a state jail felony would mean only 2 years or less for those five imprisoned individuals, while a third degree felony involves a 2-10 year sentence. And some unknown number of people formerly charged with misdemeanors for stealing small animals will now be going to Texas state jails. How can that not cost taxpayers more money?

Seliger and Kolkhorst are actually among my favorite legislators at the capitol so this isn't intended to criticize them. (The same fiscal critique can be made of nearly every "enhancement" bill.) Instead my aim is to focus attention on an ongoing institutional folly of the first magnitude: The idea that every problem can be solved through more incarceration and it costs no money to do so.

As long as I've been around the Texas Legislature, they've allowed (or arguably, encouraged) LBB to tell them official lies ("no significant fiscal implication") in their fiscal notes about how much it costs to incarcerate people. And since nobody wants a fiscal note on their own "enhancement" bill, legislators all nod and smile and go along with it.

Texas already has 2,324 separate felonies on the books, including eleven involving oysters. I wonder how many felonies this will make involving goats?

UPDATE/CORRECTION: Well, everybody sometimes makes embarrassing mistakes and I suppose yesterday was my day - probably one of many but two readers caught this one in the comment section. I misread this bill not once, but twice, mistakenly thinking it increased the penalty for goat theft when (somewhat astonishingly) that is already a state jail felony. Only theft of cattle, horses, and exotic livestock would be affected by the bill. Consider this a humble mea culpa. It was a careless, unintentional error.

Even so, it's utterly ridiculous that theft of a $35 goat would get you a felony record (just like it's absurd that it's a state jail felony to graffiti a school).
As noted in the bill's criminal justice impact statement, only five people per year are sent to prison for livestock theft, but according to the cattle raisers association, last year "there were 970 cases of cattle thefts in Texas and Oklahoma, three times the number from the previous year." So it's not like they're catching a large enough percentage of cattle rustlers for the increased penalties to make a difference.

It costs $18,000 per year to incarcerate somebody in Texas prisons. So what if Texas reduced the penalty for livestock theft to the same value-based assessment we use for everything else and spent the money saved to support a single investigator at the Texas Rangers focused on livestock theft rings? I'll guarantee that would do more to actually solve the problem and in the long run it'd be cheaper, smarter and more effective.

Tuesday, April 28, 2009

Newspapers endorse compensation for false convictions

Two major daily newspapers today urged the Texas Senate to approve legislation improving compensation for exonerated defendants.
The Statesman argued that the bill:
could actually save the state money by preventing lawsuits and avoiding large settlements and legal fees. Those who are awarded benefits would forfeit their rights to sue the state. And the legislation would not reward people who were exonerated but went on to commit other crimes. They would not qualify for benefits.

The best reason to pass the legislation is because it is the right thing to do. No one can give back the time or erase the miseries endured in prison. And Texas leads the nation in the number of people, 38, who have been exonerated by DNA testing. Perhaps attaching a cost to wrongful convictions will help improve the legal system.

The Dallas News editorial concluded:

Without this measure, the state will continue committing a double injustice to these people – once for their wrongful imprisonment and again for the failure to help them rebuild their lives once they're set free. Two wrongs make the Timothy Cole Act the right thing to do.

Meanwhile, quite a bit of other postive innocence-related legislation is still alive and moving, including the Senate version of a bill to require police departments to implement policies governing eyewitness identification procedures that will be heard tomorrow in the House Criminal Jurisprudence Committee.

Several other Senate bills on innocence-related topics have come over to the House, including legislation related to recording police interrogations, requiring corroboration for jailhouse informants, and expanding post-conviction writ access for defendants in cases where scientific evidence has been discredited. Most of this legislation doesn't face significant opposition and, as is often the case at the end of Texas legislative sessions, time is arguably its biggest enemy.

MORE: See a press release from Rep. Rafael Anchia about the compensation bill.