Caged Desire: Guard-inmate relationships flourish in prisons, jails, now halfway houses

Illicit sexual relations between inmates and guards "made up 38 percent of all sexual offenses reported in 2005" at Texas correctional facilities, according to KVUE-TV news. Most recently, reported KVUE:

At least six employees of the Way Back House, including a program director and one other top manager, have been involved in improper relationships with offenders since 2000, according to Texas Department of Criminal Justice reports.

Two of the staffers married the residents they supervised at the facility. Other employees ended up living with former Way Back House residents.

All six have been fired for the improper relationships. But none of the employees – all but one of whom are women – have been prosecuted, according to county records. Two additional Way Back House employees faced similar allegations and were later fired. State reports did not include details about those cases.

Texas law prohibits correctional staff or contract employees from having romantic and sexual liaisons with offenders in custody or under supervision. The charge of improper sexual activity with a person under supervision is a state jail felony punishable by up to two years in prison and a fine of up to $10,000.

Criminal justice experts say the intimate relationships erode discipline and morale in correctional facilities and can pose a security threat. In Tennessee, improper relationships between staff and inmates led to two escapes in 2004, one of which ended with the death of a guard.

The Way Back House's former program director, Lisa Bertelsen, is the highest-ranking employee to become ensnared in an investigation about a relationship with a resident at the small facility off Stemmons Freeway near downtown Dallas.

The Way Back House occupies an area of Dallas County's Decker overflow jail that was once the cabana of a posh hotel that hosted the Beatles during their 1964 tour. Dallas County has leased the building to the nonprofit since 1997. It is one of seven halfway houses that contract with the state to house prison parolees. The Way Back House's contract, awarded in 1996, is worth almost $2 million a year.

The illegal relationships are part of a nationwide problem in prisons and jails that the federal government began tracking in 2004 as part of the Prison Rape Elimination Act of 2003.

The unions are termed staff sexual misconduct and can be romantic in nature. But under the law, inmates can't consent because of the inherent power that correctional staff have over them – to punish or reward.

The illicit relationships made up 38 percent of all sexual offenses reported in 2005 by the nation's prisons, jails and other correctional facilities. In prisons, female staffers were involved in about two-thirds of the cases, according to a 2006 Bureau of Justice Statistics report. In jails, male staffers were more likely to be the offenders.

These allegations come at a time when legislators are proposing expanding halfway houses, so this development could create a politically sticky wicket in that regard. Such relations between jailers and offenders create big security problems - it's a lot easier for an inmate to convince their lover to assist them in other illegal activities than a guard with no emtional attachment. If nothing else, guards can then be blackmailed because the fact of having had a sexual relation with an inmate means they themselves have committed a crime.

When you think about it, the idea that 38% of sexual offenses in prison are guard-inmate relationships makes that a really high number, especially when you consider that Texas also leads the nation in reports of prison rape. That means the problem likely is quite widespread, adding to the growing body of evidence of widespread guard corruption at TDCJ.

TDCJ needs a lot more more guards with better pay, but they're at this point chronically 3,000 guards short and the quality of new hires has been low. This is a problem that's not going away overnight, but I'd have more hope it would be addressed in the long run if I heard more legislators making guard pay, training, and combating law enforcement corruption a more significant part of the public debate.

Another Reason I Love Texas: Biker Day at the Texas Capitol

This picture encapsulates something I love about Texas: All types of people find a place at the table if they're smart about it, even (perhaps especially) the biker crowd. That's state Senator Elliot Shapleigh in the photo, via Vaqueros and Wonkeros, but I promise you on their biennial lobby day the bikers were welcomed, warmly, into most every office in the capitol. Truth is, because of their mobilized numbers, they actually have political clout.

Biker lobbyist Sputnik is a brilliant character and capitol regular who routinely can garner the personal attention of the most powerful figures in state government as ably as any straight suit from Hillco. He reports on his website meetings that day with the House Speaker and Ken Armbrister, the Governor's new legislative representative (who last session was a state senator from Victoria).

Sputnik, who must now be in his 70s, wears a mohawk and biker jacket to legislative hearings, boasts a tattoo across his forehead, and probably has more guns than fingers, if I had to guess: He's missing more than a few of the latter but boasts in committee hearings of owning quite an arsenal. Last year I heard him tell a legislative committee he always carried a gun with him on his motorcycle unless he expected trouble, in which case he would bring two.

I love Texas. Where else are you going to hear that? For those who can't make it to the capitol, here's a classic Sputnik look:

Sputnik

Note to Kevin Krause: You buried your lede on collect call profiteering

The Dallas Morning News' Kevin Krause is a fine reporter, I've found, with this caveat - you should usually read his reporting from the bottom up.

In journalism there's a phrase, "burying your lede," which means that the sentence which should have been the main attention grabber is "buried" somewhere in the dense body of a story. Kevin does that so routinely I've often found myself hoping his editors don't ever cut for length by hacking off at the bottom.

In his article this morning ("County studies costly collect calls from jail," Jan. 24), Krause reports that county commissioners are considering reducing costs of collect calls from inmates. Later we find that it's come up because AT&T demanded the county reduce it's commission. Then the final parapgraph of the sentence gave the most critical information in the story:

Brad Lollar, the county's chief public defender, said his office does not accept collect calls because it's too expensive. He said it's not easy for lawyers to reach their clients in jail.

In other words, profiteering off collect calls directly reduces clients' access to their court-appointed counsel in Dallas, even in the public defender's office. One county agency (the jail) can't call another (the public defender) because of a contract with a private company that would demand the PD pay more than $4 per call!

That's pretty outrageous, don't you think? What's worse, it's sickeningly common. Even AT&T thinks it's too much. They're demanding that the county reduce its commission from 55% to 25% when the current contract ends in April. AT&T says it will cut the cost to $2 per call if the county foregoes a commission.

But even that's not the whole story, or it shouldn't be: I see no justification for AT&T's commission for local calls, ESPECIALLY if the county is going to give up its commission, anyway. If the county decides to forego a commission, they should just get rid of collect local calls. (At a minimum, they should demand that any new contract allow inmates free calls to the PD or their private attorneys. In Austin there's a "free call" list of lawyers who can receive non-collect calls from their clients in jail.)

I've argued before that there's nothing wrong with giving offenders greater access to phone service. Especially when it's used as a privilege that can be revoked, it even increases jail safety, gives incentives for improved inmate behavior, and may even reduce guard corruption. But the odious economics of jail phone calls, which bleed profit from already-strained families of offenders, are reason enough to overturn the system.

My unsolicited advice to Sheriff Lupe Valdez and the Dallas County Commissioners: Ditch the collect call scheme for local calls entirely and let's everybody - both the county and the phone company - stop mulcting families of inmates for the privilege keeping in touch with their loved ones.

And my unsolicited writing advice to Krause (and his editor): When you finish your stories, be sure to always look carefully at the last sentence. Frequently it should be the first one.

UPDATE: See more on the Dallas Commissioners Court discussing jail problems, this time healthcare deficiencies, at DallasBlog.

Why Does Andy Griffith Hate America?

In a headline at Reason Hit and Run that, as one commenter said, is "pure poetry," Radley Balko asks "Why Does Andy Griffith Hate America?"

Why, indeed? Does that take you back, or what? My guess: Today some prosecutor would have gone after noble Andy for destroying evidence, claiming all parts of the tape that didn't contain conversation with defendant's attorney should be admissible.

Could Paris Hilton survive Texas probation?

"That's hot," one Texas prosecutor responded to news that Paris Hilton received a 36-month probated sentence for "alcohol-related" reckless driving. "Probation is hot."

Too hot, think prosecutors, for the heiress to successfully complete her probation requirements if she lived in Texas. (Her case was in Los Angeles.)

I'm curious as to readers' opinions on the following question posed at the District Attorneys user forum: Could Paris Hilton, survive her probation sentence under conditions routinely imposed in Texas?

The DAs don't think so.

An East Texas prosecutor said there's "No way she makes it. ... I'm assuming avoiding "injurious and vicious habits" is one of her conditions?" he wrote. "How will she go 36 months w/o a drink"? A colleague from Weatherford agreed, "I'm guessing we'll have a paparazzi picture of her with a drink within 36 hours."

Yet another suggested that prosecutors should have a "running poll here for how long she will make it, assuming the basic Texas cop's that staying out of bars and not drinking are conditions of her probation. Who ever comes closest without going over wins. Robert has speculated 36 hours, I'll go for 7 days."

How long do you think Paris Hilton would last on probation in Texas?

Within these comments' subtext you can see why probation revocations are such a big cause of Texas prison overcrowding - many DAs request and Texas courts routinely grant probation conditions that are a) unreasonable on their face and b) have nothing to do with the crime committed. Drinking is legal. Drinking and driving is not (if you're over the legal limit). If a probationer drinks but does not drive, what's the harm? Why would that be a reasonable probation condition, especially for someone with enough money to hire chauffers 24-7?

Then all of a sudden, someone could have their probation revoked for an activity - in this case drinking alcohol - that's perfectly legal and wouldn't endanger anyone as long as the probationer didn't get behind the wheel.

Still, that observation aside, the prosecutors' comment string suggested several possible additional probation requirements that I think we could all agree on:

1. Defendant shall not star, appear or participate in any film or broadcast program within the genre popularly known as "reality TV."

2. Defendant shall not star, appear or participate in any film or broadcast program. Ever again.

3. Shall not record an album, attempt to record an album, or pretend to be a musician or vocalist, no matter how good your friend Brittany says you sing. She shall use a tiny portion of her vast, seemingly endless inheritance to buy up all remaining copies of her "musical" CD that remain in stores, wheresoever said CD's may be located.

4. She will immediately apologize to the readers of Rolling Stone for the fact that, somehow, inexplicably, her CD got a 3 star rating from an obviously tone deaf reviewer.

If the heiress would consent to those terms, I'd think it'd be worth shortening the probation length to time served. For the good of all.

Bexar County probation officers protest retention interviews

This Grits post about tumultuous labor relations at Bexar County's Adult Probation division drew a large number of comments, some of them quite angry, reacting to the probation director's decision to require all 430 employees to re-apply for their jobs and submit to retention interviews. P.O.s are also unhappy at the director's decision last year to take away their sidearms after a shooting incident.

The demand that employees re-apply for their jobs came four days before Christmas, and two days after a group of employees met with the director to demand union representation.

Today in San Antonio, even as I write this, Bexar P.O.s are staging a protest at the courthouse asking that the retention interview order be rescinded. One of the employee leaders, Sherri Simonelli, forwarded me her comments prepared for the event, which I thought I'd reprint below:

Sherri Simonelli, Adult Probation Talking Points, January 23, 2007

Good afternoon. My name is Sherri Simonelli, and I have proudly served the people of Bexar County as an Adult Probation Officer for 4 years. My husband is an Active Duty in the Army, and I have two children - Michael who is 14 and David who is 8. Everyday, I and my fellow officers and support staff strive to keep Bexar County and San Antonio safe. As Adult Probation officers we are the ones who work on the frontline with defendants on a daily basis. We are the ones who make sure that they are tested for drugs, pay their fines and are rehabilitated to be more productive members of society.

We stand here today united with members of the community, labor organizations and elected officials to send a clear message to the people of our community and the Adult Probation administration. The taxpayers of Bexar County demand accountability at all levels of government. Not equipping our Adult Probation Officers with the resources they need to keep Bexar County safe is wrong. Being a Probation Officer is a profession, officers should be treated with respect and the lines of communication should be kept open with our management. As Probation Officers, we have made a decision to dedicate ourselves to serving the public. As public servants it’s our obligation to keep our community safe and that is why we stand before you today. The working conditions in Adult Probation are impeding us from carrying out our duties. We would like for Probation Officers and the administration to be able to work as one … unfortunately, our pleas for partnership have fallen on deaf ears. We seek a seat at the table to discuss what makes most sense for San Antonio and Bexar County when it comes to public safety.

At any given time there are 20,000-30,000 cases that Adult Probation Officers manage. We have one of the worst retention rates of any department in Bexar County. Officers are leaving out of frustration over skyrocketing caseloads. It is nearly impossible for a Probation Officer to deal with 140-150 defendants on a daily basis- this is a recipe for failure.

The retention of officers is critical in order for cases involving arson, burglary, and sex offenders to be given the attention they require.

We are here today for a very simple reason: that reason is a better and safer San Antonio. We love our community and our jobs and we will continue this struggle until our voices are heard, because we know that what is at stake is the safety and security of all working families in San Antonio.

We’ve gathered today requesting that the retention interviews initiated by Adult Probation Chief Fitzgerald cease immediately so that we can get back to work and continue to do what we do best, which is keeping San Antonio Safe. The taxpayers of Bexar County have spoken and are behind us, they do not think that mandatory retention interviews of the 430 Adult Probation employees is the most efficient use of taxpayer money. We ask Chief Fitzgerald to make the right decision and stop these mandatory retention interviews and begin to address the issues that we have laid out today.

Thank You for being here in solidarity with us and have a blessed day.

More details emerge on Texas prison alternatives

According to the Statesman's Mike Ward ("Criminal justice leaders push home nurses, anger management to help trim crime," Jan. 23), the new plan for alternatives to prison building in Texas will be unveiled at a joint hearing on January 30 between the House Corrections and Senate Criminal Justice Committees. Chairmans Madden and Whitmire are doing a good job, it seems to me, of explaining the proposals to the public and their fellow legislators so far. I found their quotes and analysis in this story to be encouraging:

"If you give people the tools to become better citizens when they leave prison, and don't just lock them up and then let them out, it makes so much more sense," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston. "Public safety is the No. 1 priority in whatever we do, and if we can enhance public safety and save money, that would make the most sense."

House Corrections Committee Chairman Jerry Madden, who has been working for weeks to refine the details of the new initiatives, said thousands of convicts might be successfully kept from returning to prison and thousands more might never break the law to start with.

"This could be the biggest change in years in how we address criminal justice in this state," Madden said.

If the additional programs should eventually be approved, they would mark a significant departure from a state policy during the past 15 years of mostly building new prisons to keep up with growing numbers of convicts. In the early 1990s, Texas tripled the size off its prison system in five years and while greatly expanded drug and alcohol-treatment programs were proposed, they were never fully funded or opened.

Stay tuned for more from next week's hearing. It should be a good one. In the meantime, see Ward's preview of the long-awaited proposal.

Terrorists in Texarkana? Homeland security money diverted to drug interdiction on highways

Thank the Governor once again for keeping the border secure - this time from retirees, hog farmers and hillbillies in Arkansas!

According to the Texarkana Gazette ("Local police may soon be wrangling I-30 drug smugglers," 1-22), Governor Perry is using grant money from the Department of Homeland Security to search for terrorists in Texarkana. The funds will pay for a "Border Security Enhancement Operation."

Huh?! I was unaware until now there was a problem policing the border to ARKANSAS! (If anything, I'd have suggested militarizing the border with the Okies. The Red River should be a defensible position, one would think - perhaps a good place for a wall?)

The real purpose of the grant, though, is to fund overtime for a drug interdiction unit to work the highways trolling for asset forfeiture income, not "border security" or "terrorism." Reported the Gazette:

Some Texarkana, Texas, police officers may soon be deployed to help track down and arrest possible terrorists as well as drug smugglers along Interstate 30 and U.S. Highway 59.

During their regular meeting at 7 tonight, the Texas-side City Council will consider contracting with the Department of Public Safety to deploy some municipal officers in a Border Security Enhancement Operations Project known as “Operation Wrangle.”

The interlocal cooperation agreement will allow city police to patrol and work traffic enforcement, on an overtime basis, along I-30 and U.S. Highway 59 to target illegal drug smugglers and terrorists, according to city records.

The agreement further calls for the DPS to reimburse the city up to $43,000 for all overtime paid as well as mileage and for vehicle use—money that will come from Department of Homeland Security grants administered through the DPS and the governor’s Division of Emergency Management.

The stateside enforcement program started last week and will last through Aug. 31.

I'm no fan of these highway interdiction units - they're too income-focused and waste police resources conducting countless unnecessary "consent searches," mostly of innocent people, that serve little public safety purpose. The results are essentially random and the VAST majority of searches at drug interdiction stops don't come up with any contraband.

In 2004 I authored a public policy report on behalf of Texas ACLU analyzing drug interdiction units at Texas drug task forces (pdf). As I wrote then:

Through open records requests and several months of research, the ACLU of Texas has learned that the overwhelming majority of RNTF interdiction efforts amount to fishing expeditions that contribute little to traffic safety. Instead, interdiction permits task force officers to pull over and search thousands of innocent Texans each year as well as to seize vehicles, cash, and other forms of personal property. Furthermore, records documenting RNTF interdiction activities reveal patterns of racial disparity in how frequently officers search vehicles.

At some task forces, more than 99% of all traffic stops made by drug interdiction units did not result in traffic tickets - drivers were let off with warnings for whatever pretext the officer used for the stop. But at those stops, our research found that the focus on drug interdiction caused officers to conduct MANY more so-called consent searches than do regular police on traffic duty.

I considered the Governor's decision to de-fund Texas' regional drug task force system a big first step toward imposing accountability on the use of federal grant funds. This seems like a step backward.

I guess it's true that history repeats itself, the first time as tragedy and the second time as farce. Now we're "securing the border" with Arkansas "from terrorists." Oh, and btw, trolling for drug dealers on the highways just like they did under the old, failed task force model. This must be the farce part.

UPDATE: More on "Operation Wrangler" from South Texas Chisme and the Houston Chronicle.

Lost ... in jail

Here are two stories that are both starting to feel quite repetitive:

First, another case of someone lost in a Texas county jail system for more than a year, this time in Kaufman County, where a Spanish-speaking man remained incarcerated and unaccounted for until his probation officer began to check why he'd missed a year's worth of meetings. Officials say a new public defender office will help prevent it from happening again. That hasn't always helped in Dallas.

Meanwhile, neighboring Dallas County has recorded its 12th recent DNA exoneration, this time a man falsely accused of child rape. The case involved yet another instance of mistaken eyewitness identification. I hope this will give pause to those who would enact the death penalty for such crimes.

Countdown to Sine Die

I love that the Legislative Budget Board actually has a countdown timer with a running clock down to the second until the Texas legislative session ends. I'm not sure what kind of message that sends (besides an honest one): It's 127 days out, not one bill has passed, and we're already counting the seconds until y'all leave!

In any event, welcome back to Austin, Texas legislators! You've got an important job to do, and only one chance every two years to do it, so focus on what's best for Texas and try to play nice!

Meanwhile, we're counting the seconds.

5th Circuit Court of Appeals: A rubber stamp, a horse's ass, or just misunderstood?

Since we're on the subject of appellate courts this morning, I should mention two good recent posts about the US 5th Circuit Court of Appeals from Robert Loblaw at Decision of the Day. (The court handles appeals from federal district courts in Texas, Louisiana and Mississippi.) First, he questioned whether the Fifth Circuit's reputation as a prosecutor's rubber stamp may stem from its tendency not to publish anti-prosecution opinions? Loblaw wrote:

The Fifth Circuit tends to have a bad rap here and elsewhere when it comes to affirming criminal convictions and sentences. Could this reputation be due in part to a tendency to relegate its reversals to the dustbin of unpublished opinions? One of these unpublished pro-defendant decisions - not the first I’ve seen in recent weeks - came on Friday, as the Court reversed a drug dealer’s conviction on Confrontation Clause grounds. On appeal, the government had conceded that the testimony at issue violated the defendant’s Sixth Amendment rights, but argued that the error was harmless. The panel disagrees with the latter proposition, explaining that it cannot conclude that the admission of the offensive statements was harmless beyond a reasonable doubt. The panel even cites the Ninth Circuit for its harmless error analysis. No wonder the decision is not published.

Certainly this blog is one of the "elsewhere's" where the 5th Circuit has a bad rap. Maybe some attorney can explain it to me, but I don't see why the court wouldn't issue written opinions on EVERY reversal - otherwise how can lower courts know what they've been doing wrong and change their practices? Who knows, maybe the Fifth Circuit would look more reasonable if we saw more of their opinions.

Loblaw had equally good commentary on another Fifth Circuit case in the papers today: The 5th reversed a lower court ruling which itself had overturned a Texas state law banning the slaughter of horses for human consumption. (Two Texas plants slaughter horses for foreign consumption, said the AP.) Wrote Loblaw:

Judge Benavides’ opinion wins my vote for best opening line of the month: "The lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse, but film is an imperfect mirror for reality." In a footnote, he adds that "thieves would occasionally eat the cowboys' horses."

I have no idea what I think of the opinion, or whether I care about foreigners eating Texas horsemeat. But you've gotta agree with Loblaw that Benavides' at least put some thought into that opening line. (For the record: AP quoted Charlie Stenholm, who oughtta know what he's talking about, declaring "Those who want these plants to shut down should be careful what they wish for ... If these plants shut down tomorrow, the nation's patchwork of horse rescue facilities would be overwhelmed. They can barely manage to care for the approximately 6,000 horses already in the system.")

Following the lead of the good folks at Above the Law, I questioned earlier who might fill the two vacant Texas positions on the 5th Circuit, and got a slew of interesting reader responses. I need to go through that information and follow up at some point, but it's worth mentioning that one of the names floated in that post, Texas Solicitor General Ted Cruz was the metaphorical thumb on the nose of the Texas Court of Criminal Appeals who just argued the case for "harmless error" in Smith v. Texas.

Please let me know, gentle commenters, whenever you've got any more gossip on possible 5th Circuit appointments.

Texas CCA to US Supreme Court: Up Yours!

Forty-seven of the 392 defendants on Texas death row were convicted using sentencing instructions the US Supreme Court later declared unconstitutional. But the Texas Court of Criminal Appeals responded by thumbing its nose (again) at the high court, most recently declaring the unconstitutional instructions "harmless error."

Really, folks, when you think about it, that takes chutzpah. No wonder Texas Monthly called the CCA Texas' worst court.

Dahlia Lithwick wonders at Slate whether the Supreme Court's "opinions have become suggestions in Texas." From her description of the oral arguments, it sounds like the 7-2 supermajority that's been signing off on most bench-slapping of Texas death penalty cases may have been watered down substantially by the addition of Chief Justice John Roberts and Justice Samuel Alito.

Lithwick declares that "the lesson to be learned in Smith v. Texas is that when a lower court wants to appeal a higher court's decision, it need only wait around for a change in personnel." That prediction doesn't sound too promising for the lawyers at the UT-Austin capital punishment clinic who argued the case, but I guess we'll know soon enough.

In addition, via Talk Left I noticed a telling article I'd missed from the New York Times ("Judges scrutinize death penalty in Texas," Jan. 17) excerpting more of the oral arguments. Here's how the Times' Linda Greenhouse described the case:

The Supreme Court on Wednesday resumed its long-running effort to monitor the use of the death penalty in Texas, hearing arguments in three cases that put the strains and internal contradictions of the court’s capital punishment jurisprudence fully on display.

All three cases offer a window on the recent history of capital punishment in the United States, which to a large degree is the history of capital punishment in Texas. Since 1976, when the Supreme Court permitted states to resume executions, Texas has put to death 380 people, far more than any other state. (The next highest, Virginia, has executed 98.)

In 1989, the Supreme Court ruled that the jury instructions that Texas was using were constitutionally deficient because they failed to ensure that jurors could give meaningful consideration to a defendant’s mitigating evidence. Under the Texas system, jurors were instructed to respond to only two questions: whether the killing was deliberate, and whether the defendant posed a continuing threat to society. If the answers to both were yes, a death sentence was automatic.

The Texas Legislature addressed the problem two years later by instructing jurors to take “all of the evidence” into consideration, including the defendant’s character and background. But in the interim, during which Mr. Smith was sentenced to death for murdering a former co-worker at a Taco Bell in Dallas, judges tried to address the problem by telling jurors that if they thought the mitigating evidence warranted a sentence of life in prison rather than death, they should simply answer no to one of the two questions, even if they believed that the proper answer was yes.

Eventually, the Supreme Court held that this “nullification instruction” was constitutionally inadequate as well. It applied that ruling to Mr. Smith’s earlier appeal, overturning his sentence in 2004 and sending it back to the Texas Court of Criminal Appeals, which in turn reinstated it, finding the error “harmless” because Mr. Smith had failed to show that the nullification instruction had caused him “grievous harm.”

In his new appeal, Mr. Smith, represented by a University of Texas Law School professor, Jordan M. Steiker, is arguing that the state court’s resolution of the case flew in the face of the Supreme Court’s analysis. The state court, having failed in the first round to apply its “harmless error” rule, should not be permitted to introduce it after the fact, Mr. Steiker said.

Although several justices, most notably Stephen G. Breyer and Ruth Bader Ginsburg, clearly agreed with him, Mr. Steiker encountered stiff resistance from Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The chief justice said the Texas court had handled the case in an appropriate and even “desirable” way.

Because the state court did not initially regard the nullification instruction as an error, Chief Justice Roberts said, it had no reason at that point to decide whether the error was harmless. “Wouldn’t it be normal exercise of judicial restraint to say we don’t have to reach out and decide whether this error was harmless if we’ve already decided there’s no error at all?” he asked.

Texas was represented by its solicitor general, R. Ted Cruz, and supported by a second lawyer, Gene C. Schaerr, representing California and 20 other states that entered the case, Smith v. Texas, No. 05-11304, as “friends of the court” for Texas. Mr. Schaerr said the case presented an important federalism issue of “whether states have the ability under our federal Constitution to choose their own harmless error standards.”

I see three possible or likely outcomes: Maybe Roberts and Alito will be swayed by behind-the-scenes discussions (it's hard to understate how much hubris the CCA has shown here), a 5-4 majority could still hold up against the CCA, or else it may be that the Texas death penalty will turn out to be the first major arena where President Bush's new Supreme Court appointees start reversing the courts of the last few decades. Nothing to do now but wait and see. Read prior Grits coverage of the Smith case.

DA's closed file policy protested in Abilene

Critics of Texas prosecutors' closed file policies are taking their complaints to the street.

The good folks at West Texas Beat let us know in the comments that the Southeastern Christian Association is planning a protest in Abilene, TX on February 5 to express disapprobation at their local District Attorney's closed file policy disallowing defendants from viewing the evidence prosecutors have against them until they go to trial. (In Texas DAs make the decision whether to let defense counsel have such information on a county by county basis.)

The group will march from the federal courthouse to the Taylor County criminal courthouse to demand that local prosecutors allow defendants pretrial access to evidence collected against them like DAs do in Fort Worth, Wichita Falls, and after the last elections, now Dallas.

Good luck to the Southeast Christian Association, and bully for you for focusing on this problem. If you don't think it takes courage to stand up to the local DA over this issue in a conservative town like Abilene, folks, you've got another think coming. For more on the subject, read prior Grits coverage here, here, and here, and this discussion from Jamie Spencer at the Austin Criminal Defense Lawyer.

Get Your TDCJ Bobble Heads Here!

I'm not sure how big a market there could possibly be for such things, but at the Texas Prison Museum giftshop you can buy for $15 a Texas prison system bobble-head doll (featured at left).

Finally, ladies, the Valentines gift for the man who you thought already had it all. Order soon, while supplies last! (One wonders: Do they come in multiracial versions?) You can also buy wallets, belt buckles or an inmate-made teargas case.

For you eggheads out there who aren't interested in purchasing a belt buckle the size of a five-year old's cranium, there's also an interesting list of books about Texas prisons from the museum bookstore. Two jumped out to me as particularly interesting: First, a book called "Penology for Profit: A History of the Texas prison system 1867-1912, described how early Texas prisons dealt with their overcrowding issues:

Before the discovery of oil and the advent of Progressivism to Texas, the state dealt with prison overcrowding by leasing convicts and their labor to private industry and funneling the profits into the state’s coffers. In this book Donald R. Walker examines economic, social, and political aspects of late nineteenth and early twentieth-century Texas that resulted in the leasing system and its eventual demise.

That's a history I guess I vaguely knew about - renting out prisoners' labor to corporations, or God knows who else as a profit-making scheme for the state, but I've never seen an historial examination of the subject. That one might be worth adding to the list (if I could get through the books on it now). Another book, by Gary Brown called "Singin' a Lonesome Song," sounded particularly interesting. It was described thusly on the museum bookstore website:

Texas convicts and inmates have made the Texas prison system the most colorful in the world over the past 150 years. There was a famous gunslinger in the 1800's and a burlesque stripper in the 1950's. There were notorious gang members in the thirties, a Kiowa Indian chief, a blues musician, an escape artist, and a Mexican vaquero. -These prison tales include chain-bus drivers, wild bull riders, and a prison baseball team that took on the Texas semi-pro champions in Houston's old Buff Stadium. They include inmates and prisoners of war supplying materials to the Confederate army and convict laborers building a state railroad and quarrying granite for the beautiful state capitol in Austin. -Author Gary Brown spent twenty-three years working as counselor and teacher in the Texas prison system.

Both those sound like good reads, but I still can't get over the idea that somebody at TDCJ got the idea to have prisoners make these bobble head dolls and sell them at the Texas Prison Museum. I don't know that there's anything wrong with it, per se, really it just strikes me as odd, and kinda dopey. (OTOH, thank God somebody in the prison system still has a sense of humor.) Maybe it's because it makes me think of the Johnny Cash song, "Stripes Around My Shoulders." The last verse is the one that started rattling around my head after I saw the TDCJ bobble head - you probably remember it, so sing along:

On a Monday, my Momma come and see me.
On Tuesday, they caught me with a file.
On Wednesday, I'm in solitary.
On Thursday I start on bread and water for a while.

I've got stripes, stripes around my shoulders.
I've got chains, chains around my feet.
I've got stripes, stripes around my shoulders.
And them chains, them chains, they're about to drag me down.

Cutting, banging and self-injurious behavior among inmates

Read about how guards deal with self-injuring inmates at The Back Gate, and get a sneak preview of "The Last Statement" exhibit soon to appear at the Texas Prison Museum.

While you're there, I'd encourage you to sign a petition endorsing higher pay for Texas prison guards and staff. Good luck with that after the surplus evaporated.

Where would kids go if Texas converts two juvie prisons to adult units?

If it's true of adult prisons that if you build them, they will come, is it conversely true that if you get rid of juvie prisons, the offenders will go somewhere else? If so, where?

It remains an open question what would happen if Senate Criminal Justice Committee Chairman John Whitmire gets his way and converts two Texas Youth Commission units to adult DWI treatment facilities. Looking further at the LBB's new report detailing Texas incarceration projections (based on current law), a chart on p. 16 indicates that TYC already is 404 kids above its capacity, and that figure will "modestly" increase to 761 in 2012. (The number of kids in the juvenile probation system, by contrast, they predict will expand around 3% per year, from 44,423 in 2007 to 51,283 in 2012.)

The two units Whitmire wants to close were designed to hold 1,000 adult inmates each, but he told the Statesman's Mike Ward that they're each only holding about 300 juvenile prisoners right now. So getting rid of those units theoretically would put TYC about 1,000 beds short.

When the question of converting these units to adult prisons first came up I asked past Grits guest blogger Isela Gutierrez her opinion. (She works for the Texas Coalition Advocating Justice for Juveniles.) She replied thusly:

The answer to the question, "Where do you put the kids?" is similar to the response about the adult system. You divert non-violent offenders, to community-based programs, by providing more monies for such programs to counties that are committing the most youth. There is already a progressive sanctions system in place for juveniles and most of the kids at TYC are eligible for other community-based options, but since they are high-needs kids, counties don't want to pay for them. Also, TYC can opt to parole other eligible offenders into more intensive after-care programs.

Yes, this would require TYC to build. But, that could be a good thing -- it provides TYC an opportunity to re-build its facilities differently, not modeled after the adult correctional models, but instead built with youth rehab in mind. In Missouri (and Ohio) the juvenile justice system gave their prison-like facilities to the adult system, and built new, youth-specific facilities. In MO, the juvy corrections system got $$ for 200 new beds, and built them -- in 6 different facilities near urban centers across the state with no more than 36 beds per facility.

If they keep any of the same staff, it would be a function of former TYC staff applying to new TDCJ jobs. All TYC facilities are currently located near correctional hubs, meaning TDCJ and often other TYC facilities are within commuting distance of each other. This is one of the reasons that TYC has such terrible turnover. Often TYC and TDCJ swap staff; they are competitors for each other. ... The TYC guards definitely do not get any juvenile-rehab/adolescent development training specific to working with juveniles. That's part of the problem. They are trained for only 80 hours before going into the field. (SB 103 would increase the number of hours to the same level as TDCJ, 300 hours pre-service training.)

I like the idea of replacing larger youth facilities modeled after adult prisons with smaller units scattered near large urban centers. That makes it more likely kids can stay in touch with their families and less likely their incarceration experience will resemble a scene from Lord of the Flies.

And isn't it astonishing to learn that guards for juvie prisons get 80 hours of training before being sent into that demanding job?! Low pay and understaffing at both juvie and adult lockups is a critical question the Legislature desperately needs to address in the 80th session, but probably won't now that the surplus has vanished.

I hadn't looked previously at Sen Juan "Chuy" Hinojosa's SB 103, but it appears to be a substantial reform bill aimed at TYC, not only requiring more training hours but also mandating by law that inmate to guard ratios be maintained at a ratio of 12 to one. Right now they're about 24 to one. It would establish an Inspector General's office at TYC to investigate crimes, disallow housing youth under 15 with those 17 or older, and even require the Texas Rangers to make unannounced once per month inspections at each TYC unit! It doesn't mention requiring smaller facilities like they have in Missouri, but if TYC finds itself 1,000 beds short and the Legislature authorizes more building, I hope they follow the lead of the Show-Me state.

The increase in guard training and the numbers of guards alone will give this bill a whopping fiscal note unless, like in the adult system, the Legislature decides to fund what would be a lesser but still substantial amount necessary for counties to supervise more of these kids in the community. Whatever the outcome, we know one thing for sure: Like their adult counterparts, virtually all of them will one day get out again. It's in everyone's interest that a commitment to TYC serves as an effective intervention, that these same kids don't continue to offend and wind up funneled in a few years time into the adult prison system.

DoD domestic spying included monitoring Austin peaceniks as "threats"

According to a new report (pdf) published this week by the national ACLU, at least two Texas anti-war organizations - Veterans for Peace, and Students for Peace and Justice - were among those about whom the US Department of Defense maintains secret files in their "TALON" anti-terrorism database of "threats," (see chart, p. 2). As evidence that Veterans for Peace might be a threat, DoD officials cited (p. 5) how at:

one protest in Austin, Texas, the document notes, “The Protesters blocked the entrance to the recruitment office with two coffins, one draped with an American flag and the other covered with an Iraqi flag, taped posters on the window of the office, and chanted, ‘No more war and occupation. You don’t have to die for an education.’”

I know I feel threatened, how about you? DoD doesn't have enough real threats to worry about, apparently, in Iraq and Afghanistan so they monitor these guys.

Via ACLU of Texas' Liberty Blog. See also this national ACLU press release with further information and links.

New LBB report predicts more incarceration despite dropping crime rates

I've not had a chance to read it yet, but this brand spanking new, blandly titled report from the Texas Legislative Budget Board, "Adult and Juvenile Correctional Population Projections, 2007 - 2012," appears to have a lot of interesting new data. I'll go through it in more detail later, but a few things immediately jump out:

For starters, Texas crime rates for both adults and juveniles are going down, but our incarceration rate is going UP! (p. 3):

• Texas Crime Rate – The crime rate (number of crimes reported per 100,000 population) decreased 3.5 percent between 2004 and 2005. The total number of reported crimes also decreased (1.9 percent) between 2004 and 2005.
• Texas Juvenile Arrest Rate – The juvenile arrest rate decreased 8.3 percent between 2004 and 2005 with the drug/alcohol arrest rate decreasing the most (13.4 percent).
• Adult Incarceration Projections – The Texas adult incarceration population is projected to increase by 6,598 offenders from the beginning of fiscal year 2007 until the end of fiscal year 2009 (from a total of 152,894 to 159,492). By fiscal year 2012, the incarcerated population is projected to increase to 168,166 under current sentencing practices and
statutes.

And it's not just adults: TYC's population is expected to "grow modestly" by 2012 at a time when juvenile arrest rates are down more than 8% (p. 15).

Another interesting result from their "qualitiative" assessment: Many low-level offenders choose incarceration over probation and the main reason is a lack of mental health and drug treatment and other structural supports for probationers (p. 4):

According to focus groups and interviews with criminal justice decision-makers and practioners, prison population growth is most often associated with the lack of substance abuse and mental health treatment within the criminal justice system. The increase in direct sentences to prison and state jail was primarily attributed to offender preference for incarceration over community supervision. Among other things, participants suggested restoration of treatment funding throughout the criminal justice system, specific revisions to Chapter 42.12 (Community Supervision) of the Code of Criminal Procedure, and recognition that juvenile offenders and issues should be managed differently than adult offenders and issues . Offenders primarily attributed prison population growth to an increase in drug addiction.

If that assessment is accurate, you'd have to think that Chairmans Whitmire and Madden are on the right path with their plan to expand treatment options instead of building more prisons.

Thanks to Isela for pointing me to the report. Lots of other interesting stuff up on LBB's criminal justice web page that's worth a look for those who are interested.

This is not journalism: Recapping Grits coverage of Texas criminal justice committees' interim reports

The Texas Legislature has adjourned until Monday. With the politicians gone and the freeze momentarily lifted, Austin almost seems to be breathing a collective sigh of relief. Or maybe it's dread. In any event, it's a welcome and unexpected pause in capitol action.

On such a day, perhaps it's a nice opportunity to review the major issues on criminal justice that face the Legislature when it returns on Monday. So with apologies to Kimberly Reeves for the headline, I wanted to recap Grits' recent analyses of interim reports from Texas standing legislative committees on criminal justice issues facing the 80th Texas Legislature:

TDCJ Sunset Advisory Commission Report

• Evaluating Texas Corrections: Links to TDCJ Sunset Commission coverage

Senate Criminal Justice Committee

• Understaffing at youth lockups caused skyrocketing abuse rates
• Number of mentally ill inmates, parolees rising
• Senate committee weighs prison alternatives
• Somebody please get Sen. Estes a copy of the Texas Constitution
• Whitmire: Texas may turn two juvie facilities into adult prisons
• 80th Texas Senate Criminal Justice Committee membership

House Corrections Committee

• House Corrections Committee looks to private prisons to expand capacity
• House Corrections: Community based treatment more effective for sex offenders

See also Grits' coverage of an instructive House Corrections Committee interim hearing in March:

• House Corrections Highlights
• Juvenile justice bashed and defended
• Advocates: Texas needs stronger probation
• More Texans on probation than any other state
• Criminal Justice Gets Preview of Legislature's return

House Criminal Jurisprudence Commitee

• Lawyers, Guns and Money: The House Criminal Jurisprudence Committee interim report

House Law Enforcement Committee

• What happened to children seized under Texas' new meth law?
• Real ID Act a real boondoggle for states

Senate Transportation and Homeland Security

• Homeland security committee bases border proposals on bogus crime stats
• Senate committees disagree on border security effectiveness

House Judiciary Committee

• Do Journalists Need a Shield Law? Do Reporters S#*t in the woods?

SEE ALSO:

• Retrospective: Top ten Texas criminal justice stories of 2006
• Fantastic Fiscal Flip Flop bad news for prison builders
• A real public safety agenda for Texas
  
• Texas criminal justice legislation to watch
• House Research Organization studies on red light cameras, sex offenders, and immigration
• Are conservatives undergoing a "jailhouse conversion" on criminal justice

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Somebody please get Sen. Estes a copy of the Texas Consitution

State Sen. Craig Estes has proposed SB 185 which purports to authorize the Texas Department of Criminal Justice to house prisoners convicted in Texas in private prisons in Mexico, particularly Mexican nationals. The only problem: The state constitution and at least two federal treaties prohibit the plan.

Estes says such prisons "would be built to Texas standards but we could save money on both the construction costs and the staffing costs." He thinks Mexico would welcome the idea as a plan for "economic development." I seriously doubt that, but Mexico's stance is far from the biggest obstacle to implenting this proposal.

The Senate Criminal Justice Committee studied the idea in its recent interim report (pdf) after Estes proposed it in 2005. According to their analysis, "language in the Texas Constitution can be interpreted as prohibiting the State from transporting inmates out of Texas to any other country for a crime committed in Texas." If I were writing that sentence, I'd have said it HAS been interpreted that way, since the day it was written.

Indeed, I'm not sure how anyone could claim that part of the Constitution is open to ANY other interpretation besides one that forbids Estes' bill. The specific language states, "No person shall be transported out of the State for any offense committed within the same." That seems pretty darn clear. A 1985 amendment allowed tranfers of prisoners to other US states, but not out of the country.

So at a minimum the idea would require a constitutional amendment and a statewide vote. But even then Texas couldn't do what he proposes. Said the committee report,

The Inter-American Convention on Serving Criminal Sentences Abroad and the United States -Mexico Treaty on the Execution of Penal Sentences both state that once a prisoner is transferred to a receiving country, that country assumes all responsibilities for care of the prisoner. So long as these treaties are in effect, the State is obligated to follow them and conditions of them. Without further changes to these federal treaties, the Committee cannot recommend the state of Texas establish or contract with a private prison facility in the country of Mexico.

The Committee noted that because of the "supremacy clause" in the US Constitution, these US treaties supersede any statute on the subject Texas might pass. Clearly the bill isn't making it through the Criminal Justice Committee in 2007 - not unless the United States plans to renegotiate these treaties anytime soon. All of this came to light years ago, btw, when then-Sen. John Leedom proposed the same thing during Texas' 74th Legislature, and nothing's changed.

Given this legal and political reality, it's hard not to view Estes' proposal as pure grandstanding, wrapping together two categories of folks for whom many people have little sympathy - prisoners and immigrants - and touting an idea in the media that can't happen and basically wastes everyone's time. Hell, just having to make these arguments in a blog post feels like somebody took a half hour from me that I'll never get back.

MORE: From Capitol Annex. AND MORE from the Lone Star Times.