Mass incarceration may end not with a bang but a whimper, and a lot of whining

Regular Grits readers know well that many Texas counties in the last decade have built speculative jails with capacity far beyond their own county's needs hoping to house extra prisoners for profit, only to see the incarceration bubble begin to burst in the last year or so just as the supply of jail beds maxxed out. Mike Ward has a story today in the Austin Statesman ("County, private lockups sit empty, drain money as Texas prisoners dwindle," April 1) developing those themes, which opens:

The dusty West Texas ranch town of Anson, once known for its no-dancing law made famous in the 1984 movie "Footloose," has a dubious new claim to fame: the Jail to Nowhere.

Completed almost two years ago to house 1,100 state convicts who never arrived, the $35 million lockup sits empty at the edge of the town of about 2,300 people. Its promise of creating 195 jobs and a $5 million annual boost to the local economy is just a distant, and bitter, memory for most folks.

"It's been a huge disappointment," said Jones County Judge Dale Spurgin, who has lobbied state officials for two years without success for help to avoid an approaching default on the bonds that were issued to build the lockup.

"We've been holding our breath for 22 months. ... It looks like we're going to have to keep on holding it."

Spurgin is not alone.

In fact, research by the Austin American-Statesman shows, the situation is increasingly common in Texas and across the country because of declining crime rates, government budget cuts and increased use of treatment programs that have deflated a 20-year boom in building jails and prisons.

Although having fewer people locked up should be good news for Texas taxpayers, as the associated costs of Lone Star justice go down, the trend is drawing few cheers in Jones County and other places where taxes are going up to pay for the empty lockups.

Retiring House Corrections Chairman Jerry Madden said at the end of the story that counties couldn't count on state government to bail them out, even if they funded the speculative investment with taxpayer-backed bonds. "The state is not in a position to bail them out," said Madden. "Sad to say, but they made a business choice, and they're going to have to live with it at some point."

One sometimes hears candidates speak approvingly of "running government like a business," but businesses routinely accept a LOT more risk than county governments can or should ever consider when making decisions, say, about who to incarcerate or how much taxpayer-backed debt to take on. These counties described in Ward's story tried to run their jails like a business, and look what happened!

Ward identifies some of the trends frequently discussed on this this blog to explain the surfeit of county lockups.

For a time, Texas rode the wave with the largest number of privately financed or run prisons and jails of any state — 60 in all, by this year.

Then, about five years ago, growth in the number of state prisoners nationally began to gradually level off, and states that had sent their overflow to the private Texas lockups started keeping them at home again. The private lockups looked to a booming new market: illegal immigrants.

"The feds are pulling back right now, as well, and that, plus fewer inmates here in Texas, is the reason a lot more beds are empty now," said Adan Munoz Jr., the Jail Standards Commission's executive director.

"The other reason is that a lot of counties are doing pre-trial diversion, so they don't keep as many people in jail, because it costs less money that way. ... Budgets are tight."

Judging from this evolving grass roots narrative of sad, empty jails built on spec in rapidly depopulating rural areas, sometimes backed by bonds approaching junk status that could default at any time, mass incarceration may go out not with a bang but a whimper. And a lot of whining, if county pols quoted in the story are any indication.

See related Grits posts:

• McLennan Commissioners may end speculative private prison partnership 
• Opposing mass incarceration means opposing private prison growth opportunities 
• Obama Administration hands lucrative, belated Christmas gift to private prison industry 
• Bearish on private prison stocks if mass-incarceration bubble burst 
• 'Texas prison boom going bust' 
• 'Private prison promises leave Texas towns in trouble'
• Private prison bubble bursting? Empty, speculative jails in Texas
• Privatizing Harris County Jail would save money by cutting guard pay, benefits 
• Jailing for profit spurs inmate releases in two Texas counties
• When fewer inmates is a big problem: Perverse incentives at the McLennan County Jail
• Jones County pays for empty jail as detention bubble bursts

Lewisville sued over sex offender residency restrictions

The city of Lewisville has been sued over its residency requirements for sex offender registrants over and above state law, reports the Dallas News (behind paywall), with attorney Richard Gladden arguing that the ordinance prevents his client from living with his family. A reader pointed out this cogent reaction from a local who argues that "This ordinance was never really meant for public safety; it was meant for demagoguery. But its effects are punitive not only on the ex-offender, who ostensibly has done their time and paid their debt, but on their families. They are saddled with an additional burden at precisely the time when they need to be helping the ex-offender get back to being a productive, contributing member of society."

Galveston DA drops politicized prosecution against blogger

The District Attorney in Galveston has dropped online bullying charges after a local blogger was arrested at his home last week for online criticisms of a city council candidate's spouse. This wasn't a spur of the moment charging error but a big, fat public flip flop on a politicized prosecution. "Clear Lake Shores interim police Chief Kenneth Cook said his office worked with the district attorney before charges were filed," reported the Galveston Daily News.

Blackwell: Texas State Bar 'not set up to oversee prosecutors'

The Dallas Observer has an interview with Austin attorney Betty Blackwell who is a recent, former chair of the state bar disciplinary committee and participated on a panel discussion Thursday at the UT law school on prosecutorial oversight. These answers, I thought, were particularly enlightening:

Have you seen awareness of prosecutorial misconduct change over the years?

\I will tell you DNA and the fabulous work done by the Dallas D.A.'s office has really brought this to the forefront because Dallas was so conscientious about saving all of its biological material that its office has had the most exonerations. It has really come very much to the forefront that there are innocent people in prison.

Why is it that almost no prosecutors are disciplined for procedural errors or withholding evidence?

It's because the State Bar system is set up on a complaint-driven system. And one of the things we talked about at that symposium yesterday was getting judges to file complaints when they see this, getting prosecutors in their own office to file complaints against people in their own office that they've seen do this, would help the State Bar discipline these people.

And then the other issue as to why people haven't been disciplined, particularly about Brady violations, is that there is a four-year statute of limitations on all grievances. Brady never gets discovered within that four year period. So if you go online and look at Anthony Graves exoneration, and Charles Sebesta has a website -- he's the D.A. that convicted Anthony and put him on death row even though he was totally innocent. Charles Sebesta holds up the letter from the State Bar saying that they exonerated him. Well, you can read the letter. It says the statute of limitations has expired. And that's the issue. Most of these complaints on Brady cannot be brought to the Bar in a timely manner.

And so, one of the suggestions is to eliminate that statute of limitations so that the Bar can investigate these cases even though it's been many many years since it happened. There should be no statute of limitations.

She added that "the State Bar is really not set up to oversee prosecutors because we have to receive complaints in a timely manner. Well, the Bar Association can suspend these lawyers if they violate Brady -- well, not if they're not told about it, and not if they're not told about it within the statute of limitations. So they [yesterday's speakers] brought those [issues] to the public, to say the Supreme Court relied on some safeguards that are just not working."

Of Connick v. Thompson she opined that "We all believe that's an unjust opinion."

See the full interview for more.

'Released but not exonerated'

Texas Monthly's Michael Hall has a feature in the New York Times today on the Kerry Max Cook case.

Hasta la vista, Carl Reynolds

Congratulations to Carl Reynolds on his retirement this week from the Texas Office of Court Administration after 27 years in state government. I saw him yesterday at the capitol at an event on pretrial detention during the final hours of his tenure at the OCA, and he looked like the cat who ate the canary. He'll be moving on to work with Tony Fabelo, he told me, at the Council of State Governments. A former TDCJ general counsel, Reynolds represents a small mountain of institutional memory on obscure criminal justice topics exiting the premises that few other Texans can replicate.

Carl will still be around, I'm sure. From what I can tell, he mostly travels by bicycle so he can't get far. ;) And I hope he continues writing at his blog Courtex. Perhaps he'll even enjoy writing there more without the yoke of public duties restricting his opinions. But wherever life's journeys take him, Grits wishes him well. He'll be missed in state government.

McLennan Commissioners may end speculative private prison partnership

Bob Libal at Texas Prison Bidness pointed out a local TV news story out of Waco focused on the fallout from a debt-trap contract jail deal with private prison company Community Education Centers (CEC) that looms over the county budget like a financial Sword of Damocles. County commissioners are considering rescinding their contract with CEC - just as Liberty County is now contemplating after their jail population lowered substantially - because of a lack of available contracts to fill hundreds of unneeded jail beds built as part of an entrepreneurial partnership with the company.

Today Texas jails overall are experiencing substantial vacancy rates in part because of a wave of speculative building by counties since the turn of the century. Statewide, according to the Commission on Jail Standards, about a third of county jail beds were empty as of March 1. Jail populations are plummeting for reasons no one can entirely explain. So many Texas counties that bet on the come - overbuilding their jails hoping to cash in on contract incarceration through public-private partnerships like this one - now must eat their losses, or rather pass them on to taxpayers. And that's where McLennan County Commissioners find themselves today.

TPB adds that "Critiques of CEC's handling of immigration detainees continued [recently] as New York University and New Jersey immigrant rights groups issued a report claiming the company's Delaney Hall facility does not 'fully comply with ICE standards, the report documents problems with everything from access to legal assistance and worship services to adequate health care, food and other basic services for detainees.' (Washington Post, March 23)"

In other private prison news, reports Yahoo! Finance, "SunTrust downgraded Corrections Corp citing expectations for mixed news regarding state budgets and lower occupancy at some facilities." Apparently they don't expect states to take the company up on its recent buy-leaseback offer. Grits has argued that Corrections Corp and, even more so, its main competitor the GEO Group, are too overloaded with debt to justify rosy financial projections, particularly if the incarceration bubble continues to burst.

Showdown brewing between Travis judge, state health agency over competency restoration

Disappointing, but not unexpected: The State of Texas says it cannot comply with Judge Orlinda Naranjo's court order requiring state hospitals to accept pretrial defendants declared incompetent by the courts within 21 days, and also asked the judge herself to reconsider her decision, reports Andrea Ball at the Austin Statesman ("State fights order to move prisoners requiring psychiatric care into hospitals," March 29):

State officials say they can't obey a court order forcing them to move more than 150 mentally incompetent prisoners to psychiatric hospitals by June 1 because they don't have enough space, staff or money to do so.

The Texas attorney general's office has asked Austin-based state District Judge Orlinda Naranjo to review her January decision forcing the Department of State Health Services to start moving all current "forensic commitments" to state psychiatric hospitals by June 1. All such prisoners who arrive after that date would have to be moved to a psychiatric hospital within 21 days of a judge's order. Forensic patients are people accused of crimes who have been deemed incompetent to stand trial because of mental illness.

Complying with the court order would cost between $39 million and $55.2 million, according to a motion for a new trial filed by the attorney general's office this month.

"The short timelines set forth in the court's order makes it physically, fiscally and logistically impossible for DSHS to comply and indicates a lack of appreciation for the magnitude of the task and the complications inherent in implementing the terms of the order," the state wrote in its motion.

The attorney general has also appealed the ruling with the state's 3rd Court of Appeals.

See prior, related Grits posts:

• BSG (Broke State Goverment) seeking forensic mental health beds
• Grits commenter played role initiating lawsuit over timely competency restoration
• Judge: State mental hospitals must take incompetent inmates within 21 days
• 'Neither punished nor treated, just jailed'
• Growth in forensic commitments exacerbates shortage of state mental hospital beds
• Judge orders state hospital to take more competency restoration patients
• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

Michael Morton, John Thompson highlight prosecutor misconduct forum

It was a privilege to meet exonerees Michael Morton and John Thompson in person at yesterday's UT law school event on prosecutorial oversight. It's an incredible honor that my job with the Innocence Project of Texas affords me the chance to meet so many exonerees, and I'm always especially humbled by those like Thompson who've endured this sort of life tragedy and react by attempting to improve the system that betrayed him. He struck me as an energetic reformer and a good guy.

Though both men have endured unspeakable nightmares, in Mr. Thompson's case the courts added insult to injury. Louisiana doesn't have a compensation law for exonerees like we passed in Texas. So after he was framed by the New Orleans DA's office, spent 18 years in prison (14 on death row), then was exonerated thanks to DNA and exculpatory evidence concealed at his first trial, Mr. Thompson filed a federal civil rights suit, winning a $14 million verdict which was affirmed by the Fifth Circuit, only to have it overturned by the US Supreme Court in Connick v. Thompson last year. (See Prof. Jennifer Laurin's description for more detail.) That compensation law is one thing Texas does right compared to other states.

The event was informative, but I also agree with local attorney Don Dickson who sat next to me and wrote on Facebook that "The presentation itself was kinda discouraging. It's very clear that the difficulty of addressing prosecutorial misconduct is surpassed only by the difficulty in discovering it in the first place." That's particularly true of so-called Brady violations, or failures to disclose exculpatory evidence, where the defense and judges cannot as a practical matter know what prosecutors have hidden from them. Of course, I do think there are things that can be done legislatively to retard if not eliminate prosecutorial misconduct, but in the wake of Connick v. Thompson, the existing landscape on oversight of prosecutors is pretty bleak.

I'll write up my own notes from the event over the weekend, but here's some of the initial MSM coverage from yesterday's forum, most of which so far has focused on Michael Morton's case as opposed to the broader issues, as well as a two-part interview with Michael Morton in the Austin Statesman:

• KXAN-TV: Morton talks prosecutor accountability
• KVUE-TV: Exoneree Michael Morton shares his story at UT
• MyFoxAustin: Michael Morton speaks at UT law school
• MYFoxAustin: Interview with Jennifer Laurin 
• Daily Texan: UT Law hosts forum to discuss prosecutorial oversight
• Austin Statesman: Morton describes painful fight for freedom, how he started anew
  
• Austin Statesman: Morton can look back on pain and prison but lives in peace
  
• Austin Statesman: Michael Morton video interview parts one and two.

The Texas Tribune and the Austin Chronicle should also have coverage before long, since Brandi Grissom and Jordan Smith were both at the event; I'll link to those when they're up.

Study: Prosecutor misconduct in Texas rarely disciplined

The Texas Tribune has published some of the preliminary data from a report to be released later today (at the forum previewed by Grits below) analyzing Texas cases where appellate courts identified examples of prosecutorial misconduct but the state bar failed to discipline the attorneys. The item by Brandi Grisssom opens:

In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

None of those prosecutors has ever been disciplined.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states. ...

In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.

The McEachern case is certainly the only example I know of where a prosecutor has been disciplined by the state bar since I've been paying attention to such things (the actions that led to his probated suspension took place well before the study period), so I'm not surprised this research turned up no others. Those 91 cases, too, are just a sample identified from 2004-2008, Grits was told by one the study's collaborators, and not a comprehensive list. As Prof. Laurin pointed out, the research "explores documented court findings of prosecutorial error and there are many ways in which documented court findings, to the extent they’re publicly available, are not great ways of getting at ... how widespread of a problem there is." Still, it's notable if unsurprising that the state bar took action in none of the 91 cases identified during the period studied.

MORE: Find an excerpt from the press release below the jump:

Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight

Below the jump, find the transcript of my interview with Assistant Professor Jennifer Laurin from the UT law school, who spoke with Grits on Tuesday about prosecutorial oversight in anticipation of a panel discussion at 1:30 p.m. CDT today at the UT law school, which will be webcast live on this dedicated site. In it she describes the Supreme Court decision last term in Connick v. Thompson and why it's important, previews new research on prosecutor misconduct that will be released at the event, suggests potential areas for improving prosecutorial oversight, details who will be on today's panels and what will be discussed, and talks a little about her own academic writing on Connick. Here's the text of my conversation with Prof. Laurin:

'Veterans Defender Resource' from Indigent Defense Commission

Received this press release from the Texas Indigent Defense Commission that may interest those concerned with specialty courts: 

INDIGENT DEFENSE COMMISSION MEETS, PUBLISHES VETERANS DEFENDER RESOURCE

AUSTIN –The Texas Indigent Defense Commission published the Veterans Defender Resource for county and court officials who are interested in the creation of a new Veterans Court or enhancing their existing problem solving courts with the addition of a defender component. A law recently passed by the Texas legislature authorized counties to establish a Veterans Courts. According to Senator Leticia Van de Putte, “Senator Rodney Ellis and I authored legislation to create Veterans Courts in Texas counties because we saw the need to recognize the unique challenges faced by service members who have endured the stresses of combat. Our war fighters have sacrificed so much for us; they deserve special consideration in helping deal with the complexities within the criminal justice and legal system.”

Defendants are eligible to participate in a veterans court program only if the attorney representing the state consents to the defendant's participation in the program and if the court in which the criminal case is pending finds that the defendant is a veteran or current member of the United States armed forces, including a member of the reserves, national guard, or state guard; and suffers from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, that resulted from the defendant's military service in a combat zone or other similar hazardous duty area and materially affected the defendant's criminal conduct at issue in the case.

The Texas Indigent Defense Commission provides an array of support to counties that wish to implement initiatives that will improve access to the right to counsel. The Veterans Defender Resource provides information about how counties can access this support through the Commission’s discretionary grant programs. Additionally, the Resource includes a directory of the currently operating Veterans Courts programs throughout the state. Many of the judges who have chosen to run Veterans Courts may be valuable sources of wisdom and advice as a new court is formed. According to Judge Brent Carr of Tarrant County, “The veteran’s court has been an incredible experience.  This program is not a gift to a veteran, it is an opportunity.  By completing a professionally designed course of therapy and treatment, the veteran has the opportunity to correct destructive behavior and have his or her good name restored.  This is good for the veteran, the veteran’s family, and the community.  It’s the least we can do.”

The Veterans Defender Resource is available on the Commission’s website (pdf).

SCOTUS to consider what training, credentials needed for drug-dog alert probable cause

The US Supreme Court agreed this week to hear arguments regarding a case from the Florida Supreme Court to decide what level of training, certification, etc., is sufficient for a narcotics dog's alert to count as probable cause. The Florida Supreme Court held the dog in Florida v. Harris was not sufficiently credentialed, so if SCOTUS doesn't like the ruling, there's a risk they took it up to overturn it.

The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."

The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."

Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."

How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?

This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."

I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.

MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.

AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."

FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.

The fundamental role of states in crime lab regulation

Apropos of recent Grits discussions of crime lab accreditation and oversight, reader Ryan Goldstein alerts me to his student note in the Texas Law Review titled "Improving Forensic Science Through State Oversight" (pdf).

Goldstein says forensic science faces two core problems: "questionable validity and questionable reliability." The "questionable validity" speaks to fundamental concerns whether the scientific basis underlying many forensic practices is truly sound: E.g., whether tool marks, ballistic matches or tire track comparisons should be considered dispositive identification in criminal courtrooms? Goldstein's suggestions for a state-centered regulatory structure do not speak to "validity" questions, and IMO it probably is a federal role to fund the sort of research needed to move that ball forward in the way that science, for example, has improved eyewitness ID techniques and arson investigations over the last two decades.

On questions of "reliability," though, where the underlying science is valid, Goldstein rightly calls state regulation of crime labs "an ignored resource." States inherently have a role regulating forensic science because forensic evidence is most often used in state courts. So in each state, either the legislature does the regulating, it hands off regulation authority to some executive-branch entity, or else the courts must do it themselves on an ad hoc basis. But somebody at the state level must do it, and Goldstein points out that states are "well positioned to implement reforms ... that target reliability." He argues that:

The NAS Report charged the federal government with implementing its recommendations. But, as mentioned above, this ignores the direct control that states have over their laboratories and criminal justice systems. Furthermore, federal reform requires uniformity and ignores the benefits of state experimentation. It ignores geographic differences in values and the differences in the ways that states administer their systems of criminal justice and criminal investigation. Finally, with the current political climate in Washington, federal reform may be difficult to pass. And even if it were to pass, it may reflect a compromise between differing interests rather than the most robust oversight possible.

Goldstein thinks mandatory accreditation is insufficient (as do I) in part because "accreditation only addresses issues of compliance with existing scientific practices. It does not address the validity of the underlying science, identify cases of technician negligence or fraud, remedy past injustices, or necessarily advocate for the best possible laboratory practices." For those issues, he said, states have turned either to independent investigations in high-profile cases, a tactic made more attractive by the availability of federal funds for the purpose in recent years, or else some type of oversight board or independent investigative body like Texas' Forensic Science Commission or the North Carolina's Innocence Commission. Each has pros and cons, but these are all examples of state-level experimentation through which we're learning important overall lessons about what crime lab regulation should look like, argues Goldstein.

Prof. Paul Gianneli has a response (pdf) to this piece in the same issue of the Texas Law Review pointing out the need for federal support on improving forensic "validity" while agreeing that "The states are indeed responsible for their crimes laboratories, and it is a responsibility that they have often neglected." Meanwhile. CrimProf blog points to another response (pdf) by Jessica Gabel and Ashley Champion arguing that centralized federal oversight would be more "practical." Gianelli, though, notes the federal and state approaches are not mutually exclusive: "The proposed federal legislation ... would not preempt state innovation; it would fund accreditation, not require it. This funding, however, may never materialize, and the states (as Mr. Goldstein notes) are independently obligated to regulate their crime labs."

On one, key point, I wholeheartedly, vociferously disagree with Mr. Goldstein when he writes that "the NAS Report‘s call for the removal of laboratories from law enforcement is infeasible and unlikely to receive political support." That's a political assessment, not a data-driven one, and in my experience it's deeply flawed. The political class generally gets why it's a conflict for police to control crime labs, they just don't have a great set of options available to them or, at the moment, extra resources. But politicians in Houston, e.g., which is the central example in Goldstein's essay, mostly pay lip service to the idea of removing the crime lab out from under law enforcement, though the devil is of course in the details. Still, I've neither seen nor heard of opposition in the political sphere so intense that it makes me think the goal of separating crime lab management from law enforcement is categorically impossible. Certainly, can't never could.

That said, in all, this student note was a worthy contribution, locating the cutting edge of a debate that's presently very much a moving target. This post portrayed just a fraction of what's in these three pieces, so those with more than a passing interest in such matters should read them for yourselves.

Prof. Jennifer Laurin previews forum on prosecutorial oversight

Tomorrow afternoon at the UT law school there will be a 2-hour panel discussion on prosecutorial oversight, part of a "national conversation" promoted by the national Innocence Project and the Veritas Initiative in the wake of the Supreme Court's Connick v. Thompson decision affirming that prosecutors have "absolute immunity" for on-the-job misconduct. Assistant Professor Jennifer Laurin will be moderating the event, and yesterday I got a chance to sit down with her to discuss the issues in this Grits for Breakfast podcast/interview. (See the transcript here.)

Laurin describes Connick v. Thompson in some detail, and explains why the subject merits such a "national conversation." She then gives a rundown of the heavy hitting lineup on the dais, and discusses broadly some of the possible approaches or potential "sites" for reform that could be considered. And we discuss Laurin's own writing on Connick v. Thompson, about which she recently authored a chapter in a manual on federal civil rights litigation. She's very knowledgeable and we could easily have spoken about the subject a lot longer (the interview runs a little over 20 minutes).

The event itself will be broadcast live online on this dedicated website for those who can't attend. Here's a copy of the press release:

Prosecutorial Oversight: A national dialogue in the wake of Connick v. Thompson

Thursday, March 29, 2012
1:30 to 3:30 PM
Francis Auditorium
University of Texas School of Law – Austin, Texas

Please join us for the Texas stop of a national tour to address the issue of prosecutorial oversight.  The Supreme Court’s recent decision in Connick v. Thompson rejected civil liability for Brady violations in lieu of what it took to be effective status quo mechanisms for training, supervising, and remediating prosecutorial disclosure issues. A discussion followed by Q&A will address existing oversight mechanisms in Texas, assess their adequacy, and explore possible avenues of reform.

Speakers include:

• Betty Blackwell – Attorney, former chair of the Texas Commission for Lawyer Discipline
• Jennifer Laurin (moderator) – Assistant Professor, University of Texas School of Law
• Jim Leitner  - First Assistant District Attorney, Harris County
• Michael Morton – Freed after 25 years in prison in Texas following DNA exoneration and revelation of concealed exculpatory evidence
• Hon. Bob Perkins (Ret.) – Former judge, 331st District Court, Travis County
• Professor Robert Schuwerk – Professor, University of Houston Law Center, author of leading treatise on Texas rules of professional conduct
• John Thompson – Founder and Director of Resurrection After Exoneration and Voices of Innocence and plaintiff in Thompson v. Connick, imprisoned in Louisiana for 18 years (14 on death row), freed after revelation of concealed exculpatory evidence
• Emily West – Research Director, The Innocence Project

Public intoxication, hypothetical harms, and 'contempt of badge'

The Austin Statesman today published a story ("Public intoxication laws too fuzzy, critics say," March 27) questioning Austin PD's alleged use of public intoxication charges as "contempt of badge" and detailing the loosey goosey standards under which the law is enforced. "I can't believe the haphazardness with which they're arresting people for public intoxication," former DA candidate Mindy Montford told the paper. "You'd be hard-pressed in the penal code to find another crime as subjective as this one."

Montford said most offenses in the Texas penal code include some stipulations about a suspect's mental state, such as whether they acted recklessly or intentionally. They also put the burden of proving the offense's veracity on prosecutors.

But the public intoxication charge has none of this, Montford said, especially when compared with the state's laws against driving while intoxicated. "When you compare the two, the amount of evidence that goes into a DWI" is massive, she said, such as a field sobriety test and breath or blood alcohol tests. "There's none that goes into P.I."

Attorney David Gonzalez said he has represented college students who drove to the entertainment district downtown, had some drinks, decided it was best not to drive and then were arrested for public intoxication while walking home.

Gonzalez said the public intoxication charge is "the only law on the books that allows hypotheticals."

"Hypothetically, they could trip and fall down, so they're a danger to themselves or others," he said. In all other crimes, from theft to murder, a criminal act has to have been committed to justify a charge, he said.

While public intoxication is only a class C misdemeanor, meaning it is punishable by a fine not to exceed $500, it is also an arrestable offense and one that could cause problems at job interviews and other situations, attorneys said.

The offense accounts for a significant number of arrests for a Class C misdemeanor. "Austin police made about 5,600 public intoxication arrests last year, according to data obtained by the American-Statesman through an Texas Public Information Act request. In the past five years, the department has typically made between 5,500 and 6,000 arrests annually, except in 2009 when that number rose to 6,730 arrests, according to the data."

Michael Morton speaking out

The Texas Tribune and KXAN news in Austin each have interviews with Michael Morton, who's making the rounds in the media, apparently, after breaking his cherry with a national splash on 60 Minutes Sunday night.

• Texas Tribune: Michael Morton talks about ordeal, hopes for future
• KXAN-TV: Morton says faith saw him through

For those in Austin, Mr. Morton will be speaking on a panel Thursday at the UT law school at 1:30 p.m. about prosecutorial misconduct (see more detail in the second half of this post), which will be his first public speaking engagement to my knowledge since his exoneration. The event is part of a "national dialogue in the wake of Connick v. Thompson," an effort launched earlier this year by the national Innocence Project and the Veritas Initiative. See more detail at a website created to support this public education effort.

'Crashing the system,' crime lab follies, and a route off death row

Here are a few odds and ends for you that didn't make it into their own, full Grits posts but still merit readers' attention:

'New doubts arise in case surrounding 1985 murder'
Brandi Grissom at the Texas Tribune examines the possibility that a man recently convicted of a gruesome 1985 murder in a prominent Austin cold case may be innocent and gives voice to calls for DNA testing. The defense has posited a theory that Mark Norwood, the man accused of killing Michael Morton's wife Christine as well as another Austin woman, was responsible for the murders and asked for any DNA evidence from the scene to be tested to see if it matched him or anyone else in the CODIS database. The Travis County prosecutor in the case, incidentally, is Mark Pryor who blogs at DA Confidential.

'Crime is down and so is the cost of fighting it' 
So says the Texas Public Policy Foundation's Marc Levin in a recent Houston Chronicle op ed.

Walker commissioners may bypass voters on jail building
In Huntsville, Walker County Commissioners are considering building a new jail with certificates of obligation so they don't have to go to the voters for approval. Readers may recall that Harris County voters rejected a new jail several years ago and Smith County voters said "no" three times before persistence finally paid off for Tyler jail builders. So I understand why they'd want to bypass the voters. But they shouldn't.

Retrials provide route off death row
Brian Rogers at the Houston Chronicle has a story on the recent upsurge of retrials ordered in Harris County death penalty cases because of flawed jury instructions, most of which resulted in life sentences. Said my ol' college pal Danalynn Recer, "We structure the plea in a way that there's not ever going to be parole."

Crime Lab Follies: Empire State edition
Having written recently about the shortcomings of crime lab accreditation, Grits was interested to see this item from Paul Kennedy at The Defense Rests describing the meltdown in oversight at the Nassau County (Long Island) crime lab in New York, which was closed in 2011 "due to grave concerns about the integrity of testing being performed at the lab," according to a massive but revealing report on the subject the NY Office of Inspector General. More from Kennedy on lab accreditation here.

'Crashing the system'?
Michelle Alexander recently had an op ed in the New York Times calling for defendants to organize and choose en masse to take their cases to trial in order to "crash the system," declaring that when a friend mentioned the idea she was so stunned she found herself "speechless." She asks: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?” The short answer is that if you were able to organize hundreds of thousands of people you could change the laws at the Legislature and wouldn't need to crash the system! So organize them, already, if it's that easy! See a prosecutor's reaction to the suggestion. MORE: See a biting response from A Public Defender.

'Life, With Dementia'

Here's a notable New York Times feature and editorial on some of the unique healthcare problems facing the growing cadre of senior-citizen inmates in American prisons with dementia, a phenomenon resulting from long prison sentences meted out over the last several decades:

• Dementia Behind Bars
• The Vanishing Mind: Life, With Dementia

Here's a summary tidbit from the main story:

Dementia in prison is an underreported but fast-growing phenomenon, one that many prisons are desperately unprepared to handle. It is an unforeseen consequence of get-tough-on-crime policies — long sentences that have created a large population of aging prisoners. About 10 percent of the 1.6 million inmates in America’s prisons are serving life sentences; another 11 percent are serving over 20 years.

And more older people are being sent to prison. In 2010, 9,560 people 55 and older were sentenced, more than twice as many as in 1995. In that same period, inmates 55 and older almost quadrupled, to nearly 125,000, a Human Rights Watch report found.

The editorial puts it even more starkly, echoing themes regular Grits readers will recognize: "According to a report from Human Rights Watch, in 2010 roughly 125,000 of the nation’s 1.5 million inmates were 55 years of age and over. This represented a 282 percent increase between 1995 and 2010, compared with a 42 percent increase in the overall inmate population. If the elderly inmate population keeps growing at the current rate, as is likely, the prison system could soon find itself overwhelmed with chronic medical needs."

Most of the main story is about a California program that trains inmates with good behavior records to provide care for inmates with dementia, Alzheimer's, or other such disabilities. But Texas and other high-incarceration states face similar dynamics. Older prisoners are both one of the fastest growing segments of the inmate population and among the most costly, mainly because of high healthcare expenses.

Just as society increasingly uses prisons and jails in lieu of mental hospitals, they're beginning to also replace nursing home beds for a small but rapidly growing class of elderly prisoners. Over the next five to ten years Grits expects this to become one of the central challenges of modern prison management, not to mention a source of increasingly poignant moral conundrums for the legislature and the parole board. There are no easy answers for the questions that arise when the end of life nears, either for families when tasked with such decisions or the state when acting in loco parentis.

60 Minutes interviews Michael Morton

"It's not every day that a convicted murderer clears his name and then returns to court to argue that his prosecutor should be prosecuted," correspondent Lara Logan said at the opening of 60 Minutes' segment last night featuring Michael Morton's first media interview since his exoneration. See the clip (there's a ad at the beginning of each):


And here's an additional online discussion from the 60 Minutes reporter and producers:


The account of Morton's relationship with his son is one of the most heartbreaking you'll ever encounter, like some epic, tragic Russia novel with a surprise, wholly Americanized happy ending - like a "present from heaven," as Morton himself put it. Morton's is an amazing tale. Once again, congrats to him and everyone involved over the years in fighting the Williamson County DA's office to free him.

RELATED: Reacting to the story, Wilco Watchdog says that "Ken Anderson put Morton in prison and John Bradley kept him there." Bradley wasn't mentioned in the 60 Minutes piece, but there's little doubt the issue looms large over his re-election campaign, for the reasons articulated by the Watchdog, and this national press coverage won't help matters. In a sense, it may benefit Bradley that the redistricting battle forced the state to push back its primaries, or Williamson County voters would be going to the polls next week with the 60 Minutes story fresh in their minds. OTOH, it's also possible the longer timeline will give Bradley's opponent a chance to make the associations among voters between Bradley and the Morton case that 60 Minutes left out. We won't know until May how this may impact the Williamson DA's race, but the incumbent must be worried.

ALSO: In the second clip embedded above, the producer said they interviewed Michael Morton for nearly three hours in preparation for this story, with just a few minutes broadcast during this segment. This was Morton's first media interview since his release last fall, so I hope CBS goes ahead and puts more of the extended interview online. That's historic material.

AND MORE: Texas Monthly's Paul Burka has a bloggerly assessment of the Williamson County DA's race in the wake of 60 Minutes' coverage.