As the big probation bills await hearings on the House and Senate floors today (see prior Grits coverage linked here), another important probation bill passed the Senate today on the local and consent calendar. HB 1759 by Keel/Whitmire will allow juries to recommend probation for state jail felony offenses. Currently, even people who commit violent felonies can potentially get probation, while state jail felons -- many of whom are low-level drug offenders caught with less than a gram of a controlled substance -- are barred from receiving that sentence recommendation from a jury.
This bill alone isn't enough to stem the overincarceration crisis, but it's a logical start. Even the usually reactionary Harris County District Attorney supported the idea in committee. In some jurisdictions, state jail felony cases make up 30-40% of prosecutors' caseloads. In many cases, these are exactly the type of nonviolent offenders better dealt with through the probation system. It's smarter and better public policy to reserve prison, as state Rep. Ray Allen, R-Grand Prairie, has said, for people whom society fears, not those at whom we're merely angry.
Thursday, May 12, 2005
Rep. Hodge's son "turned the corner"
Chairman Keel just reported on the House floor that Rep. Terri Hodge's son, Brian, who is in intensive care in Dallas following a car accident, has stopped his internal bleeding and had his situation upgraded to "stable." Doctors cautiously told Rep. Hodge that her son has "turned the corner," Keel said. That's welcome news, and I hope he quickly recovers. With Rep. Moreno's tragic passing, this legislative session needs no additional tragedy. Please keep Rep. Hodge, her son and her family in your thoughts and prayers.
Wednesday, May 11, 2005
Texas' Right Confronts 'Overcriminalization'
When Texas Land Commissioner Jerry Patterson first ran for the state Legislature, he said today at the Texas Public Policy Foundation's luncheon forum on "Overcriminalization," he purchased a billboard along a major highway featuring the slogan, "Limit politicians' terms, not prisoners' terms."
Today, Patterson said, he disagrees with both parts of that statement. The voters should be the arbiter of term limits, he said, and his tough-on-crime zeal lessened considerably once he got to the Legislature and realized there are just "too many damn laws."
Typically, he said, they are proposed by "Do-Gooders" who want to criminalize activity they don't like. City councils are the worst, Patterson said. "The greatest threat to liberty is a city council," because they are "outcome-oriented" and tend to have less respect for separation of powers and how their role interacts with people's rights and the rest of government. (As an aside, that description certainly fits the ignominious Austin City Council.)
As an example, he cited municipalities' efforts to thwart the Legislature's decision to allow licensure of individuals to carry concealed weapons, which Patterson sponsored in the Texas Senate. They'd pass ordinances banning guns in city-owned premises, parks and events, post signs without legal weight or merit claiming guns were forbidden when they weren't, and generally attempted to use an inhospitable attitude to restrict licensed gun carriers in lieu of legal authority.
Indeed, Patterson had a funny schtick about government signage. Usually when a sign says something is true "under penalty of law," Patterson said, the government is "running a bluff"! He said he had occasionally physically removed signage that misstated the law about concealed weapons permits and taken it to the building manager with a complaint.
Crimes "follow people around their entire lives," said Patterson, "forever," so society should be more reticent to punish. "Deprivation of liberty or property" shouldn't be permissible except in cases of serious misbehavior, he said.
Gene Healy of the Cato Institute in D.C. was next up, and gave a polished presentation about overcriminalization focusing more on the federal level. He identified three worrisome trends:
There are around 4,000 federal crimes, Healy reported, though no one knows for sure because the task of counting is too complex. (In Texas, there were 1,941 separate felonies, excluding misdemeanors, when the legislative session began, but a few more have slipped by since then and will likely become law.) There are so many laws on the books, Healy said, that on paper nearly everyone is a criminal. That means, though, that the "law on the street" becomes that police and prosecutors pick and choose who to go after and why.
He cited an FDR-era Supreme Court jurist whose name I missed decrying that circumstance, predicting that in that case prosecutors will go after whoever they can get, not the cases that most need to be prosecuted. (That's exactly the circumstance in which we find ourselves today, IMO, particularly regarding drug and firearms prosecutions.)
Healy pointed out that the Constitution affords only the most limited enforcement powers related to things like treason, piracy, counterfeiting and bribery, but that as written the federal government was not expressly afforded police powers. "Unruffled, knee-jerk federalization flies in the face of the Tenth Amendment," he said. He never opined that the federal government has no business being involved with the drug war, but the implication was unavoidable from his line of thinking.
The youngish Cato Institute scholar had an amusing litany of examples of silly crimes and prosecutions, but my favorite was learning that it's a federal crime to disrupt a rodeo. That revelation also allowed him to get off the best line of the event: "I yield to no man in my desire for an orderly rodeo," he declared, but there was no constitutional reason it should be a federal crime.
Healy also worried about a trend toward sending people to prison for mere negligence, that is, failing to require that intent to commit an offense be a part of the crime, a theme moderator Marc Levin later picked up praising a Terry Keel bill making cities require a "culpable mental state" as a component of Class C misdemeanor crimes with fines greater than $500. That basically means the offender, in order to receive the higher fine, had to know what they were doingand that it was wrong (see coments for a better definition of "culpable mental state.")
Healy's final theme -- the use of heavy handed tactics for minor offenses -- could have come out of the ACLU playbook as he criticized "using handcuffs, jails and tasers for situations that don't warrant it." His examples were mostly federal, the most ridiculous being a case where a woman was handcuffed and arrested at customs in Miami because, a year earlier, she'd allegedly failed to pay a fine for leaving a bag of marshmallows out at a Yosemite Park campsite! "In a free society, an ordinary citizen minding her own business shouldn't be arrested and humiliated," Healy said. That was refreshing to hear. I doubt many ACLUers would have put it much differently.
Healy's best points, though, came with his declaration that the trend toward overcriminalization "is not tough on crime." That certainly made my ears perk up. Being tough on crime, he said, means making intelligent distinctions between conduct that threatens life and property and conduct that is less grave. The proliferation of thousands of laws is "weakening the moral force of criminal law," Healy said, "making a joke out of the criminal law, making it that much easier for people to disrespect the law." He thought this trend, in aggregate, undermines the unwritten social contract that binds people to their government.
Healy's new book, Go Directly to Jail: The Criminalization of Almost Everything, definitely goes on the summer reading list (which is stacking up, incidentally).
The Texas Association of Business' Bill Hammond was sort of the oddball panelist in the group -- I doubt, for example, that he ever voted against many prison-sentence-increase bills in his four terms in the Texas Legislature. He started by asking if anyone from the press was in the room. I am many things, but I am not the press, so I did not declare myself; I mention it, though, because Mr. Hammond may be surprised to read this account, and for that I'd beg his indulgence.
Hammond thought legislators should be flatly restricted by rule as to how many bills they can file, since no one can keep track of everything that's moving at the Lege. The Texas Association of Business, he said, considered that it is "better to kill bills than fix them," because the fix usually involved some compromise of principle or efficacy that resulted in bad law. In the case of bills creating new criminal conduct, there's "usually an existing law covering such activity."
Given his group's tussles with the Travis County District Attorney regarding alleged campaign finance law violations, it's not surprising Hammond spent a lot of his time decrying restrictions on free speech, especially the McCain-Feingold law which he said limits free speech to 275 days per year -- since groups like his cannot spend money on broadcast advertising during the period leading up to an election.
The Texas Legislature was considering legislation Hammond considered "worse" than the federal law that would "criminalize free speech," but the bill was stopped, he said, thanks to the "courage of Mary Denny."
Marc Levin, the new head of TPPF's Center for Effective Justice, closed out the panel with an adumbration of his findings in his recent report, "Not Just For Criminals" (pdf), discussed by Grits earlier here. He went through the status of several bills discussed in the appendix to that report. Given that he started pretty late out of the gate, Mr. Levin's been doing some interesting stuff this sesson, IMO, even if he is Sarah's nemesis. I'm just sort of following their stuff from a distance, and this is the first TPPF event I've attended in a decade. But the themes expressed today sharply contrast with historically more common tough-on-crime rhetoric from the right. Further evidence that Doc Berman is onto something.
For those interested, Ann is diligently collecting materials from TPPF on criminal justice reform here.
Today, Patterson said, he disagrees with both parts of that statement. The voters should be the arbiter of term limits, he said, and his tough-on-crime zeal lessened considerably once he got to the Legislature and realized there are just "too many damn laws."
Typically, he said, they are proposed by "Do-Gooders" who want to criminalize activity they don't like. City councils are the worst, Patterson said. "The greatest threat to liberty is a city council," because they are "outcome-oriented" and tend to have less respect for separation of powers and how their role interacts with people's rights and the rest of government. (As an aside, that description certainly fits the ignominious Austin City Council.)
As an example, he cited municipalities' efforts to thwart the Legislature's decision to allow licensure of individuals to carry concealed weapons, which Patterson sponsored in the Texas Senate. They'd pass ordinances banning guns in city-owned premises, parks and events, post signs without legal weight or merit claiming guns were forbidden when they weren't, and generally attempted to use an inhospitable attitude to restrict licensed gun carriers in lieu of legal authority.
Indeed, Patterson had a funny schtick about government signage. Usually when a sign says something is true "under penalty of law," Patterson said, the government is "running a bluff"! He said he had occasionally physically removed signage that misstated the law about concealed weapons permits and taken it to the building manager with a complaint.
Crimes "follow people around their entire lives," said Patterson, "forever," so society should be more reticent to punish. "Deprivation of liberty or property" shouldn't be permissible except in cases of serious misbehavior, he said.
Gene Healy of the Cato Institute in D.C. was next up, and gave a polished presentation about overcriminalization focusing more on the federal level. He identified three worrisome trends:
- Overcriminalization (making criminal acts of civil wrongs or things that just shouldn't be crimes).
- Over-federalization
- Using criminal law enforcement tactics against ordinary non-violent citizens "who aren't crooks or thugs."
There are around 4,000 federal crimes, Healy reported, though no one knows for sure because the task of counting is too complex. (In Texas, there were 1,941 separate felonies, excluding misdemeanors, when the legislative session began, but a few more have slipped by since then and will likely become law.) There are so many laws on the books, Healy said, that on paper nearly everyone is a criminal. That means, though, that the "law on the street" becomes that police and prosecutors pick and choose who to go after and why.
He cited an FDR-era Supreme Court jurist whose name I missed decrying that circumstance, predicting that in that case prosecutors will go after whoever they can get, not the cases that most need to be prosecuted. (That's exactly the circumstance in which we find ourselves today, IMO, particularly regarding drug and firearms prosecutions.)
Healy pointed out that the Constitution affords only the most limited enforcement powers related to things like treason, piracy, counterfeiting and bribery, but that as written the federal government was not expressly afforded police powers. "Unruffled, knee-jerk federalization flies in the face of the Tenth Amendment," he said. He never opined that the federal government has no business being involved with the drug war, but the implication was unavoidable from his line of thinking.
The youngish Cato Institute scholar had an amusing litany of examples of silly crimes and prosecutions, but my favorite was learning that it's a federal crime to disrupt a rodeo. That revelation also allowed him to get off the best line of the event: "I yield to no man in my desire for an orderly rodeo," he declared, but there was no constitutional reason it should be a federal crime.
Healy also worried about a trend toward sending people to prison for mere negligence, that is, failing to require that intent to commit an offense be a part of the crime, a theme moderator Marc Levin later picked up praising a Terry Keel bill making cities require a "culpable mental state" as a component of Class C misdemeanor crimes with fines greater than $500. That basically means the offender, in order to receive the higher fine, had to know what they were doing
Healy's final theme -- the use of heavy handed tactics for minor offenses -- could have come out of the ACLU playbook as he criticized "using handcuffs, jails and tasers for situations that don't warrant it." His examples were mostly federal, the most ridiculous being a case where a woman was handcuffed and arrested at customs in Miami because, a year earlier, she'd allegedly failed to pay a fine for leaving a bag of marshmallows out at a Yosemite Park campsite! "In a free society, an ordinary citizen minding her own business shouldn't be arrested and humiliated," Healy said. That was refreshing to hear. I doubt many ACLUers would have put it much differently.
Healy's best points, though, came with his declaration that the trend toward overcriminalization "is not tough on crime." That certainly made my ears perk up. Being tough on crime, he said, means making intelligent distinctions between conduct that threatens life and property and conduct that is less grave. The proliferation of thousands of laws is "weakening the moral force of criminal law," Healy said, "making a joke out of the criminal law, making it that much easier for people to disrespect the law." He thought this trend, in aggregate, undermines the unwritten social contract that binds people to their government.
Healy's new book, Go Directly to Jail: The Criminalization of Almost Everything, definitely goes on the summer reading list (which is stacking up, incidentally).
The Texas Association of Business' Bill Hammond was sort of the oddball panelist in the group -- I doubt, for example, that he ever voted against many prison-sentence-increase bills in his four terms in the Texas Legislature. He started by asking if anyone from the press was in the room. I am many things, but I am not the press, so I did not declare myself; I mention it, though, because Mr. Hammond may be surprised to read this account, and for that I'd beg his indulgence.
Hammond thought legislators should be flatly restricted by rule as to how many bills they can file, since no one can keep track of everything that's moving at the Lege. The Texas Association of Business, he said, considered that it is "better to kill bills than fix them," because the fix usually involved some compromise of principle or efficacy that resulted in bad law. In the case of bills creating new criminal conduct, there's "usually an existing law covering such activity."
Given his group's tussles with the Travis County District Attorney regarding alleged campaign finance law violations, it's not surprising Hammond spent a lot of his time decrying restrictions on free speech, especially the McCain-Feingold law which he said limits free speech to 275 days per year -- since groups like his cannot spend money on broadcast advertising during the period leading up to an election.
The Texas Legislature was considering legislation Hammond considered "worse" than the federal law that would "criminalize free speech," but the bill was stopped, he said, thanks to the "courage of Mary Denny."
Marc Levin, the new head of TPPF's Center for Effective Justice, closed out the panel with an adumbration of his findings in his recent report, "Not Just For Criminals" (pdf), discussed by Grits earlier here. He went through the status of several bills discussed in the appendix to that report. Given that he started pretty late out of the gate, Mr. Levin's been doing some interesting stuff this sesson, IMO, even if he is Sarah's nemesis. I'm just sort of following their stuff from a distance, and this is the first TPPF event I've attended in a decade. But the themes expressed today sharply contrast with historically more common tough-on-crime rhetoric from the right. Further evidence that Doc Berman is onto something.
For those interested, Ann is diligently collecting materials from TPPF on criminal justice reform here.
Hearne task force suit settled! Reform bills move
ACLU's racial profiling lawsuit against the drug task force in Hearne, TX has settled! No details are public yet, but a series of rulings last month against the task force's defense team apparently caused them to reconsider their balls-to-the-wall, win-at-any-cost approach they'd fronted the past couple of years. The case had been scheduled to go to trial in federal court in Waco on May 23.
Meanwhile, the Texas Legislature yesterday continued its efforts to rein in drug task forces. HB 1239 passed in the Senate on second reading, and is likely to be finally voted on today. Sen. Juan "Chuy" Hinojosa substituted a new version of the bill he said he'd negotiated with the Governor's office. Rather than abolish local drug task forces, it gives the Texas Department of Public Safety the statutory authority to exercise firmer command and control over them, including decisions about where they should be deployed, plus new tools to punish drug task forces that don't comply with DPS rules. The geographic makeup of Byrne-funded drug task forces has previously been a political, not a strategic decision - at the moment, not even all of the border counties receive coverage.
I'd much rather see the task forces simply abolished. The whole system is flawed and corrupt. But the truth is, I'd expect the really bad actors might disband, anyway, rather than comply with DPS Narcotics' much more stringent standards for drug operations. At least regarding undercover operations and confidential informant use, DPS is a much more professional outfit than any of the task forces, and their Standard Operating Procedures require much more accountability of drug enforcement than typical task force rules. Don't get me wrong, DPS still has its problems, but they're not in the same league with these task force clowns.
In the other chamber, the House Criminal Jurisprudence Committee canceled its hearing last night and so did not consider SB 1125, which would force rogue drug task forces to accept supervision from the Texas Department of Public Safety Narcotics Division or else be abolished. When Gov. Perry ordered Texas' Byrne grant funded drug task forces under DPS authority, several of them with large amounts of asset forfeiture income decided to reject oversight and live solely off their forfeiture money. Hinojosa's bill would ban that practice.
This nasty trend toward financing your base budget out of asset forfeiture funds is a truly awful idea. If you want to see how reliance on forfeiture money skews drug enforcement priorities, check out this fine article from the Chicago Tribune about asset forfeiture practices in rural Georgia.
Meanwhile, the Texas Legislature yesterday continued its efforts to rein in drug task forces. HB 1239 passed in the Senate on second reading, and is likely to be finally voted on today. Sen. Juan "Chuy" Hinojosa substituted a new version of the bill he said he'd negotiated with the Governor's office. Rather than abolish local drug task forces, it gives the Texas Department of Public Safety the statutory authority to exercise firmer command and control over them, including decisions about where they should be deployed, plus new tools to punish drug task forces that don't comply with DPS rules. The geographic makeup of Byrne-funded drug task forces has previously been a political, not a strategic decision - at the moment, not even all of the border counties receive coverage.
I'd much rather see the task forces simply abolished. The whole system is flawed and corrupt. But the truth is, I'd expect the really bad actors might disband, anyway, rather than comply with DPS Narcotics' much more stringent standards for drug operations. At least regarding undercover operations and confidential informant use, DPS is a much more professional outfit than any of the task forces, and their Standard Operating Procedures require much more accountability of drug enforcement than typical task force rules. Don't get me wrong, DPS still has its problems, but they're not in the same league with these task force clowns.
In the other chamber, the House Criminal Jurisprudence Committee canceled its hearing last night and so did not consider SB 1125, which would force rogue drug task forces to accept supervision from the Texas Department of Public Safety Narcotics Division or else be abolished. When Gov. Perry ordered Texas' Byrne grant funded drug task forces under DPS authority, several of them with large amounts of asset forfeiture income decided to reject oversight and live solely off their forfeiture money. Hinojosa's bill would ban that practice.
This nasty trend toward financing your base budget out of asset forfeiture funds is a truly awful idea. If you want to see how reliance on forfeiture money skews drug enforcement priorities, check out this fine article from the Chicago Tribune about asset forfeiture practices in rural Georgia.
Tuesday, May 10, 2005
Time for Action on Probation is Now
Take a minute to respond to this action alert requesting support for important Texas legislation allowing probationers who don't commit new crimes to earn their way off probation with good behavior. Go here for background on the bills. If you live in Texas, contact your state senator and representative today: probation-strengthening legislation will likely be voted on in both the House and the Senate this week. And check out prior Grits probation coverage:
There are slippery slopes and then there are treacherous cliffs
The Texas-based public defender at Injustice Anywhere thinks through how HB 2337, if enacted as approved yesterday by the Texas House, might play out in court when the government has accessed biometric-password-protected computer data:
I can just see the government's arguments in response to a motion to suppress now. "Your honor, there could be no reasonable expectation of privacy if the passwords for the records were biometric data the defendant should have known was already in possession of the State." And since there's no reasonable expectation of privacy, there's no search. No search, no need for a warrant.Bada Bing, Bada Boom. That's about the size of it. This is a terrible bill. There are about ten good reasons to oppose it. But giving law enforcement free access to personal biometric computer passwords has to rank near the top of the list.
House panel restricts consent searches at traffic stops
Texas moved another step closer yesterday to requiring peace officers to obtain written consent before searching personal vehicles at traffic stops when the House Law Enforcement Committee approved SB 1195 by Hinojosa/Dutton/Hupp last evening. The legislation had earlier cleared the Senate on the local and consent calendar.
New language in the House committee substitute - a compromise with committee chairman Rep. Joe Driver, R-Garland -- would not require written consent if it is captured with an audiovisual recording device, but if the video did not adequately capture consent, the search would be invalid. The Texas Department of Public Safety would develop the written consent instrument as well as standard language for obtaining verbal consent - sort of a Miranda-style statement that would have to be made and acquiesced in on video before a search could be conducted.
That's far from the outright ban on consent searches advocates originally requested, but this late in the session, half a loaf starts to look pretty good. Under the current bill language, there would be more opportunity for public input through the DPS rulemaking process. Plus, in the end I suspect many agencies with cameras would move to written consent, anyway, under the law. Cameras in police cars are notoriously unreliable, and I'd think police wouldn't want to risk not getting to use the results from a search if a camera wasn't working.
The bill still has three major hurdles to clear - the House Calendars Committee, a House floor vote, and it must avoid a gubernatorial veto - so it's way too early for any chicken counting. But I think a lot of people have been surprised how much support this idea has garnered, not just from the civil rights community but from conservative groups like the National Rifle Association. The notion seems to have struck a positive nerve. On Sunday, the Houston Chronicle editorialized:
New language in the House committee substitute - a compromise with committee chairman Rep. Joe Driver, R-Garland -- would not require written consent if it is captured with an audiovisual recording device, but if the video did not adequately capture consent, the search would be invalid. The Texas Department of Public Safety would develop the written consent instrument as well as standard language for obtaining verbal consent - sort of a Miranda-style statement that would have to be made and acquiesced in on video before a search could be conducted.
That's far from the outright ban on consent searches advocates originally requested, but this late in the session, half a loaf starts to look pretty good. Under the current bill language, there would be more opportunity for public input through the DPS rulemaking process. Plus, in the end I suspect many agencies with cameras would move to written consent, anyway, under the law. Cameras in police cars are notoriously unreliable, and I'd think police wouldn't want to risk not getting to use the results from a search if a camera wasn't working.
The bill still has three major hurdles to clear - the House Calendars Committee, a House floor vote, and it must avoid a gubernatorial veto - so it's way too early for any chicken counting. But I think a lot of people have been surprised how much support this idea has garnered, not just from the civil rights community but from conservative groups like the National Rifle Association. The notion seems to have struck a positive nerve. On Sunday, the Houston Chronicle editorialized:
The Legislature should also prohibit police from stopping vehicles and searching them without probable cause to believe a crime is being committed. Minority drivers are disproportionately intimidated and harmed by this practice, which turns up little contraband. Some citizens, including several legislators, complain that they refused to consent to a search and police conducted the search anyway without bothering to get a warrant. Searches without probable cause, which inflict great injustice while detecting little crime, should stop.Such an outright ban on consent searches is now off the table this legislative session, but even the watered down version that passed House Law Enforcement should have a big effect on how many Texans are consent searched. In Austin, when a requirement for written consent was implemented last year, the number of people consenting to searches declined 63%.
Sunday, May 08, 2005
HB 2337: No warrant for police to get personal biometric computer passwords
Just as Microsoft and other technology vendors move wholesale toward biometric passwords for personal and business computers, legislation near passage in the Texas House of Representatives would gather the two password biometrics most commonly used into a database of 13.5 million Texas drivers, and allow law enforcement to access the information without a warrant in any criminal investigation.
Talk about unintended consequences! Well, maybe it's intended by somebody.
Presently, two types of biometrics are commonly used for personal computer passwords: fingerprints and facial recognition. For some time now DPS has gathered both thumbprints (or fingerprints where that's not possible) on all Texas drivers, and in recent years has begun to maintain that data digitally. Now they'll add facial recognition measurements from their photo database to the mix. (You don't suppose anybody would want to steal that information, do you? Identity theft, anyone?)
Never forget that, to your computer, your fingerprint, facial image or iris scan isn't connected to you - it's just data, a bunch of ones and zeroes cycling through the computer system. If it's stolen, you can never get it back, nor can you change your fingerprints or your facial structure. Emerging technologies utilizing biometric computer passwords create new, invasive uses for old data like fingerprints and digitized images that, if HB 2337 should become law, could henceforth be accessed by police without a warrant.
UPDATE: HB 2337 passed the Texas House on Monday, May 9, on an unremarked voice vote.
Talk about unintended consequences! Well, maybe it's intended by somebody.
Presently, two types of biometrics are commonly used for personal computer passwords: fingerprints and facial recognition. For some time now DPS has gathered both thumbprints (or fingerprints where that's not possible) on all Texas drivers, and in recent years has begun to maintain that data digitally. Now they'll add facial recognition measurements from their photo database to the mix. (You don't suppose anybody would want to steal that information, do you? Identity theft, anyone?)
Never forget that, to your computer, your fingerprint, facial image or iris scan isn't connected to you - it's just data, a bunch of ones and zeroes cycling through the computer system. If it's stolen, you can never get it back, nor can you change your fingerprints or your facial structure. Emerging technologies utilizing biometric computer passwords create new, invasive uses for old data like fingerprints and digitized images that, if HB 2337 should become law, could henceforth be accessed by police without a warrant.
UPDATE: HB 2337 passed the Texas House on Monday, May 9, on an unremarked voice vote.
Proposed Texas biometric ID system still may allow thousands of frauds
Caffeinated Security examines the idea of creating a biometric facial recognition database of Texas drivers and ID card holders, authorization for which the Texas House of Representatives initially approved on Thursday. Using Bruce Schneier's security analysis process from Beyond Fear, CS offers a security perspective on the wastefulness and potential for abuse posed by compiling a massive database of drivers' personal facial measurements. Particularly interesting is his analysis of "tradeoffs":
Good stuff. Be sure to check out the rest of the post for more background on why this new system won't make Texas more secure. See also prior Grits biometrics coverage.
To attempt to prevent license fraud, the state of Texas would compel anyone needing to drive to expose themselves to a great risk of identity theft. There’s no legislative requirement for security of the data in this database, but there is a requirement to use inaccurate technology that will not be effective in its goal of reducing duplicate and fraudulent licenses, particularly where facial recognition is used. Under somewhat optimistic assumptions, 34,000 drivers a year will be initially denied their legitimate licenses, while perhaps 8,000 fraudsters will be initially accepted in their application for fraudulent ID.The 8,000 frauds per year allowed is based on a very optimistic 1% false negative rate for facial matching systems. Since current error rates for the technology are much higher, it's probable many more frauds could be allowed. (By contrast, estimates provided to the House Defense Affairs Committee at the bill's public hearing predicted the new Texas system might catch five people per week statewide attempting drivers license fraud, or 260 per year.)
Good stuff. Be sure to check out the rest of the post for more background on why this new system won't make Texas more secure. See also prior Grits biometrics coverage.
Saturday, May 07, 2005
More Big-Government Conservativism
The RFIDs in vehicle registration stickers are no longer in the bill, but Rep. Larry Phillips HB 2893, which passed out of the Texas House Transportation Committee this week, would create yet another massive government database filled with Texans' personal information -- this time all their auto insurance data.
(Kuff and others have cited earlier language about "special inspection certificates," and there's been some confusion as to whether the RFIDs were still being considered, but I'm pleased to confirm that wording was removed entirely in the committee substitute.)
The legislation was just submitted to House Calendars, and there are a ton of bills ahead of it waiting to be heard on the House floor, with crunch time further tightened by the cancellation of Friday's calendar out of respect for Rep. Joe Moreno's sad and untimely passing. There's a decent chance, then, that the bill won't have time to be heard this session, since it certainly would be controverial and likely require a time-consuming debate.
Before this week's vote in favor of gathering biometric facial recognition data on Texas drivers, I'd have thought the Texas House ready to resist such Big Brother government databases. In the wake of that vote, though, it's hard to tell who will stand up against the increasingly common use of personal and commercial data for police purposes. The grass roots of the Republican Party pretty much opposes such invasive policies, as evidenced by longstanding language re-adopted in the 2004 Texas GOP platform:
(Kuff and others have cited earlier language about "special inspection certificates," and there's been some confusion as to whether the RFIDs were still being considered, but I'm pleased to confirm that wording was removed entirely in the committee substitute.)
The legislation was just submitted to House Calendars, and there are a ton of bills ahead of it waiting to be heard on the House floor, with crunch time further tightened by the cancellation of Friday's calendar out of respect for Rep. Joe Moreno's sad and untimely passing. There's a decent chance, then, that the bill won't have time to be heard this session, since it certainly would be controverial and likely require a time-consuming debate.
Before this week's vote in favor of gathering biometric facial recognition data on Texas drivers, I'd have thought the Texas House ready to resist such Big Brother government databases. In the wake of that vote, though, it's hard to tell who will stand up against the increasingly common use of personal and commercial data for police purposes. The grass roots of the Republican Party pretty much opposes such invasive policies, as evidenced by longstanding language re-adopted in the 2004 Texas GOP platform:
The Party directs that legislation be introduced in both the United States Congress and the Texas Legislature to repeal existing statutory requirements to end the ever increasing, incessant, recurring, and calculated gathering, accumulation, and dissemination of fingerprints, Social Security numbers, financial and personal information of law-abiding citizens by business and governments, the use of which are contrary to and destructive of our individual and collective freedom. Such legislation shall provide remedy and redress to any individual denied service for refusing to provide the above-mentioned information.That doesn't seem to apply, though, to creating new databases of drivers' facial measurements or their personal insurance data. The small-government rhetoric one hears on the campaign trail never seems to translate, does it, into actually less government in people's lives?
DPS knew eight years ago Moon's conviction dubious
At first, the Texas Department of Public Safety failed to hand over the documents at all in response to the El Paso Times' open records request. When they finally did, it turned out the agency knew eight years ago that Brandon Moon's 1987 rape conviction was possibly false. But when the agency informed El Paso prosecutors of their findings, no one sought further tests that would confirm the false conviction. This quote in particular jumped out at me:
Assistant District Attorney John Davis, who asked Stanley to review the Moon evidence in 1996, said in an interview earlier this year that it "wasn't my role as the prosecutor to go out and manufacture or produce exculpatory evidence."Yeah, no reason a prosecutor would want to know who the real rapist is, huh? Further evidence why accuracy is optional in modern forensic science.
Friday, May 06, 2005
Overincarceration Roundup
- Moving time for pot legislation: Texas' county jails are filling up, and the final House floor calendar will be published on Tuesday. Isn't it time for the Calendars Committee to kick HB 254 restructuring sentences for low-level marijuana possession out onto the House floor before the deadline? I mean, y'all had time to debate the cheerleader thing. It passed unanimously from committee with no voiced opposition -- even conservative reps Debbie Riddle and Mary Denny voted for it. HB 254 provides much-needed relief for county jails, reducing overcrowding pressure, boosting local revenue, likely increasing enforcement, while saving jail space for more serious offenders. Come on, guys, how 'bout some love?
- Whitmire nixes enhancement: Meanwhile, the big-city police chiefs are just getting the message that the Senate sent last week about increasing prison sentences for burglary of a vehicle. It ain't happening.
- For the wonks among you: Ann has the language and summaries for the House and Senate versions of legislation strengthening the probation system.
- Cha-Ching: LBB says making probation stronger will save more money than expected. Hard to put too much stock in that. LBB first predicted Texas prisons wouldn't fill up till this fall, then it was March, now it's this summer. They routinely give flat out wrong estimates for the cost of prison sentence increases. So who knows whether these numbers are worth anything? Still, it's better than a sharp stick in the eye, and another voice confirming that shorter, stronger probation could be a stopgap solution to Texas' overincarceraton crisis.
Thursday, May 05, 2005
Texas risks identity theft with Big Brother biometrics database
The Texas House today chose to risk identity theft of Texans' personal data on a scale that, in just a few years, could make the release of Choicepoint's information seem small time.
The House passed on second reading today HB 2337 by Corte which allows the Texas Department of Public Safety to create a statewide biometric facial recogntion database of all drivers license and ID card holders. The bill is very similar to one voted down on a 111-26 vote in 2003. DPS ignored that vote, though, and included the technology in their request for proposals, anyway. Now they've come back to the Lege looking for another bite at the apple.
The stakes if Texas makes an error are potentially enormous. Bill Gates has predicted that in just a few years, biometrics - presently facial recognition and fingerprint data are the main types used - will replace computer passwords for homes and businesses. Those are exactly the two biometrics DPS will now collect: thumbprints and facial recognition scans. The thumbprints have never worked well, which is why they want the facial recognition data.
So if DPS' data is stolen in a couple of years, then, the thieves will potentially have stolen millions of Texans' computer passwords. Ooops. What then? Legislators will find their political opponents blaming them for it in their direct mail, that's what.
The theft scenario isn't too far-fetched. One of the two firms bidding on DPS' drivers license re-engineering project was responsible this spring for personal data about thousands of people stolen from the Nevada DMV.
Nearly equally disturbing, the bill removes all restrictions on using Texas drivers and ID card holders' personal data for criminal investigations -- right now the information can only be used for a narrow list of purposes including verifying identity when renewing a license and draft registration. HB 2337 allows the data to be used for criminal investigations without a judge's oversight -- presently, law enforcement can use the data whenever they need to, but must obtain a court order.
Terrible bill; assuming no dramatic turnaround tomorrow, it's sad to say the Texas Senate may be our best hope for avoiding another new Big Brother database of Texans' personal information.
The House passed on second reading today HB 2337 by Corte which allows the Texas Department of Public Safety to create a statewide biometric facial recogntion database of all drivers license and ID card holders. The bill is very similar to one voted down on a 111-26 vote in 2003. DPS ignored that vote, though, and included the technology in their request for proposals, anyway. Now they've come back to the Lege looking for another bite at the apple.
The stakes if Texas makes an error are potentially enormous. Bill Gates has predicted that in just a few years, biometrics - presently facial recognition and fingerprint data are the main types used - will replace computer passwords for homes and businesses. Those are exactly the two biometrics DPS will now collect: thumbprints and facial recognition scans. The thumbprints have never worked well, which is why they want the facial recognition data.
So if DPS' data is stolen in a couple of years, then, the thieves will potentially have stolen millions of Texans' computer passwords. Ooops. What then? Legislators will find their political opponents blaming them for it in their direct mail, that's what.
The theft scenario isn't too far-fetched. One of the two firms bidding on DPS' drivers license re-engineering project was responsible this spring for personal data about thousands of people stolen from the Nevada DMV.
Nearly equally disturbing, the bill removes all restrictions on using Texas drivers and ID card holders' personal data for criminal investigations -- right now the information can only be used for a narrow list of purposes including verifying identity when renewing a license and draft registration. HB 2337 allows the data to be used for criminal investigations without a judge's oversight -- presently, law enforcement can use the data whenever they need to, but must obtain a court order.
Terrible bill; assuming no dramatic turnaround tomorrow, it's sad to say the Texas Senate may be our best hope for avoiding another new Big Brother database of Texans' personal information.
Wednesday, May 04, 2005
Bill restructuring task forces moves on
Man alive! HB 1239 by Hodge/Hinojosa, which would force the restructuring of Texas' drug task force system, passed favorably out of the Senate Criminal Justice Committee today in the same form in which the legislation passed the House. At the hearing yesterday evening, Hinojosa said he was negotiating with the Governor's office over amendments that might allow the bill to escape a possible veto, but if such changes are made, they'll likely happen now on the Senate floor.
The bill requires task forces to enter into formal interlocal agreements governed by stricter statutory requirements than at present, and would only allow arrests outside of officers' jurisdictions for low-level crimes in the presence of an officer from the local area. In the House, task force officials said those requirements amounted to abolishing the task forces. If so, that'd be fine with me. But on paper, at least, it would allow them to exist in a modified form. The more task forces that choose not to comply with the stricter rules, the more money is freed up for items like drug courts, treatment programs and probation services which may also be funded by the same federal grant program.
The Senate Committee also approved HB 1759 by Keel/Whitmire, which would allow probation in state jail felony cases.
In other task force related news, word comes that the civil rights trial related to task force misconduct in Hearne, TX has been postponed until May 23. It was supposed to begin next week.
The fallout from the Tulia saga is not over yet. Stay tuned.
The bill requires task forces to enter into formal interlocal agreements governed by stricter statutory requirements than at present, and would only allow arrests outside of officers' jurisdictions for low-level crimes in the presence of an officer from the local area. In the House, task force officials said those requirements amounted to abolishing the task forces. If so, that'd be fine with me. But on paper, at least, it would allow them to exist in a modified form. The more task forces that choose not to comply with the stricter rules, the more money is freed up for items like drug courts, treatment programs and probation services which may also be funded by the same federal grant program.
The Senate Committee also approved HB 1759 by Keel/Whitmire, which would allow probation in state jail felony cases.
In other task force related news, word comes that the civil rights trial related to task force misconduct in Hearne, TX has been postponed until May 23. It was supposed to begin next week.
The fallout from the Tulia saga is not over yet. Stay tuned.
No speed up for Texas death penalty via HB 268
Texas won't choose to become the first state to opt in to a federal "fast track" appeals system, Sen. Juan "Chuy" Hinojosa declared in response to testimony yesterday afternoon in the Senate Criminal Justice Committee. Hinojosa is carrying HB 268 in the Senate, which would alter the qualifications for attorneys in death penalty cases. House Criminal Jurisprudence Committee Chairman Terry Keel carried the bill in the House, where the bill had a contentious hearing.
Other concerns about lessening qualifications seem to hinge on the queston of whether prosecutors in their first death penalty case on the defense side can be sufficiently sympathetic toward the killer to compile a thorough social history and argue the mitigation portion at sentencing adequately. I'm inclined to think it'd be a good idea to second chair a case once before taking on that primary responsibility, but reasonable people can disagree about that. Certainly some lawyers with extensive death penalty defense experience have proven awful. Opting in to the federal fast track system, though - given Texas' egregious Court of Criminal Appeals - would be a disaster.
The now-off-the-table"opt-in" status would have caused a truncated federal habeas process - including cutting the filing deadline in half and allowing only one stay of execution regardless of the issues in the case. Texas is the only state in the country to have executed inmates (at least four) whose attorneys missed the current federal habeas filing deadline. Hinojosa said he and Chairman Keel, working with advocates, agreed not to "opt in."
Most of the committee was absent last night, so there was no way to get a sense of where things stood on the legislation, but the opt-in was the Oh-my-God-you're-going-to-do-what? part of this bill, so no matter what that's a great relief.
Other concerns about lessening qualifications seem to hinge on the queston of whether prosecutors in their first death penalty case on the defense side can be sufficiently sympathetic toward the killer to compile a thorough social history and argue the mitigation portion at sentencing adequately. I'm inclined to think it'd be a good idea to second chair a case once before taking on that primary responsibility, but reasonable people can disagree about that. Certainly some lawyers with extensive death penalty defense experience have proven awful. Opting in to the federal fast track system, though - given Texas' egregious Court of Criminal Appeals - would be a disaster.
The now-off-the-table"opt-in" status would have caused a truncated federal habeas process - including cutting the filing deadline in half and allowing only one stay of execution regardless of the issues in the case. Texas is the only state in the country to have executed inmates (at least four) whose attorneys missed the current federal habeas filing deadline. Hinojosa said he and Chairman Keel, working with advocates, agreed not to "opt in."
Most of the committee was absent last night, so there was no way to get a sense of where things stood on the legislation, but the opt-in was the Oh-my-God-you're-going-to-do-what? part of this bill, so no matter what that's a great relief.
Tuesday, May 03, 2005
RFID opt out bill would protect students
Will Dallas ISD follow the Spring school district to put electronic tracking devices in student IDs, now that Spring chief Michael Hinojosa has been named superintendent of Dallas schools? If so, the Lege might want to go ahead and pass HB 2953 by Rep. Lois Kolkhorst, R-Brenham, which is up today on the better-late-than-never-docket in the House Public Education Committee. That bill would at least create an opt out for those who object.
Personally, I prefer a complete ban on using electronic trackers on children. It's just creepy and invasive, or as one Spring student told the New York Times, "It's just too Big Brother for me."
Last fall, Spring ISD made national headlines with its decision to install Radio Frequency Identicaton Devices (RFIDs) in student ID cards. RFIDs are small radio transponders that emit a signal which may be tracked with an attuned receiver. Walmart uses them to track inventory, so it was only a matter of time before some totalitarian bureaucrat decided to use it to track kids and people. As Kuff put it, why don't you "just implant the chip in my head and be done with it"?
In California, a school district scuttled a RFID ID program after similar complaints were made by ACLU of Northern California and the Electronic Privacy Information Center:
Kolkhorst attached an identical amendment to HB 2, the big school finance bill, but the American Electronics Association hopes to strip off the language in the conference committee. Since the House already voted for her language once, maybe it can sail on through even though it's awfully late in the game. House bills must be voted off the floor by the end of next week, so any legislation just now receiving a hearing is a little late out of the starting gate. I'm glad Kolkhorst is still pushing it, though, and if HB 2953 doesn't make it in time, I sure hope her colleagues assist her in protecting the amendment on HB 2.
Personally, I prefer a complete ban on using electronic trackers on children. It's just creepy and invasive, or as one Spring student told the New York Times, "It's just too Big Brother for me."
Last fall, Spring ISD made national headlines with its decision to install Radio Frequency Identicaton Devices (RFIDs) in student ID cards. RFIDs are small radio transponders that emit a signal which may be tracked with an attuned receiver. Walmart uses them to track inventory, so it was only a matter of time before some totalitarian bureaucrat decided to use it to track kids and people. As Kuff put it, why don't you "just implant the chip in my head and be done with it"?
In California, a school district scuttled a RFID ID program after similar complaints were made by ACLU of Northern California and the Electronic Privacy Information Center:
According to the groups, the RFID device transmits private information to a computer on campus whenever a student passes under one of the scanners. The ID badges, which students are required to wear around their necks at all times, also include the student’s name, photo, grade, school name, class year and the four-digit school ID number.
"Monitoring children with RFID tags is a very bad idea," said Cédric Laurant, Policy Counsel with EPIC. "It treats children like livestock or shipment pallets, thereby breaching their right to dignity and privacy they have as human beings. Any small gain in administrative efficiency and security is not worth the money spent and the privacy and dignity lost."
RFIDs were criticized for actually posing new safety concerns for students, rather than making them more secure. Said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU of Northern California, "RFID badges jeopardize the safety and security of children by broadcasting identity and location information to anyone with a chip reader and subject students to demeaning tracking of their movements."
Kolkhorst attached an identical amendment to HB 2, the big school finance bill, but the American Electronics Association hopes to strip off the language in the conference committee. Since the House already voted for her language once, maybe it can sail on through even though it's awfully late in the game. House bills must be voted off the floor by the end of next week, so any legislation just now receiving a hearing is a little late out of the starting gate. I'm glad Kolkhorst is still pushing it, though, and if HB 2953 doesn't make it in time, I sure hope her colleagues assist her in protecting the amendment on HB 2.
Monday, May 02, 2005
Probation summary
Here's a summary from Chairman Whitmire's committee staff of the Texas Senate's proposal to improve probation, SB 1266, and a complete list of bills affecting community supervision.
Meanwhile, the Texas Public Policy Foundation's Marc Levin had this op ed in support of strengthening probation recently in the Amarillo Globe News. Ann compiled TPPF's recent material supporting various criminal justice reforms here.
Meanwhile, the Texas Public Policy Foundation's Marc Levin had this op ed in support of strengthening probation recently in the Amarillo Globe News. Ann compiled TPPF's recent material supporting various criminal justice reforms here.
Sunday, May 01, 2005
Happiness is good bills moving
Friday I mentioned several good criminal justice bills moving in the Texas Lege, and here I notice a few more moving along through the process this week:
Reciprocal discovery in criminal court: Few who don't make their living at the courthouse believe it the first time you tell somebody Texas DA's don't have to give up offense reports or witness statements to defense counsel in criminal trials. They "may" do so, but they don't have to. The "may" in that statute will become a "shall," and prosecutors must start giving over such information if SB 560 by Carona, which is up Tuesday in the House Criminal Jurisprudence Committee becomes law. Discovery rights will be "recriprocal," so defense counsel must also give up their recorded witness statements and other previously undiscoverable material. As I understand it, the prosecutors and the defense bar struck a deal on this one, so it appears likely to make its way into law. This will constitute a significant change in Texas criminal trials, if it passes, and should make them more fair and accountable.
Allowing juries to give probation for state jail felonies: Meanwhile, HB 1759 by Keel, which passed the House last month, will receive a hearing in the Senate Criminal Justice Committee on Tuesday. That bill would permit a jury to recommend community supervision, i.e., probation, for state jail felony offenses, which is presently disallowed. The change could have a significant impact on overincarceration in state jails. In many jurisdictions, these cases constitute 30-40% of prosecutors' regular caseloads.
Abolishing/reforming drug task forces: HB 1239 by Hodge, which in its House rendition would abolish Byrne-grant-funded drug task forces, will receive a hearing Tuesday in the Senate Criminal Justice Committee. See prior Grits coverage here and here. While the House had no problem nixing drug task forces, the Senate appears more reticent to toss them overboard entirely, so expect some compromises to occur before this bill moves out of committee. Still, their passage of SB 1125 shows the senators want to clean up the task force imbroglio..
Reciprocal discovery in criminal court: Few who don't make their living at the courthouse believe it the first time you tell somebody Texas DA's don't have to give up offense reports or witness statements to defense counsel in criminal trials. They "may" do so, but they don't have to. The "may" in that statute will become a "shall," and prosecutors must start giving over such information if SB 560 by Carona, which is up Tuesday in the House Criminal Jurisprudence Committee becomes law. Discovery rights will be "recriprocal," so defense counsel must also give up their recorded witness statements and other previously undiscoverable material. As I understand it, the prosecutors and the defense bar struck a deal on this one, so it appears likely to make its way into law. This will constitute a significant change in Texas criminal trials, if it passes, and should make them more fair and accountable.
Allowing juries to give probation for state jail felonies: Meanwhile, HB 1759 by Keel, which passed the House last month, will receive a hearing in the Senate Criminal Justice Committee on Tuesday. That bill would permit a jury to recommend community supervision, i.e., probation, for state jail felony offenses, which is presently disallowed. The change could have a significant impact on overincarceration in state jails. In many jurisdictions, these cases constitute 30-40% of prosecutors' regular caseloads.
Abolishing/reforming drug task forces: HB 1239 by Hodge, which in its House rendition would abolish Byrne-grant-funded drug task forces, will receive a hearing Tuesday in the Senate Criminal Justice Committee. See prior Grits coverage here and here. While the House had no problem nixing drug task forces, the Senate appears more reticent to toss them overboard entirely, so expect some compromises to occur before this bill moves out of committee. Still, their passage of SB 1125 shows the senators want to clean up the task force imbroglio..
Saturday, April 30, 2005
Case study for probation reform
If you ever wonder why Texas' probation reform is necessary, consider this blogger's plight. The writer has been on probation eight years for a "crime against self, not society," but may wind up being sent to prison for two years if the prosecutor wins a revocation motion based on technical violations. Her husband is deceased, she has custody of a minor child, she's caring for an aging grandparent, and after eight years of paying fees and playing by the rules, she faces possible prison time without having been convicted of another crime. Welcome to Wichita County justice.
The idea behind probation reform is to shorten the length of probation, to give probationers incentives to earn their way off probation with good behavior. The only reason to keep a probationer on for eight years is because they keep paying fees and haven't done anything wrong.
UPDATE: See the Statesman's Mike Ward's new piece on probation reform status, including an interesting chart showing current felony probationers' offenses. See also this supportive editorial from the Corpus Christi paper.
The idea behind probation reform is to shorten the length of probation, to give probationers incentives to earn their way off probation with good behavior. The only reason to keep a probationer on for eight years is because they keep paying fees and haven't done anything wrong.
UPDATE: See the Statesman's Mike Ward's new piece on probation reform status, including an interesting chart showing current felony probationers' offenses. See also this supportive editorial from the Corpus Christi paper.
Subscribe to:
Posts (Atom)
.jpg)
