The Real Costs of Jessica's Law: Deconstructing the Fiscal Note for HB 8

Now that the Texas Legislature has begun its biennial ritual of passing new penalty enhancements, it's time for Grits to begin hashing through the various ways in which costs for these penalty hikes are systematically low-balled when calculating the state budget.

A great example may be found in the fiscal note for Jessica's Law, HB 8, which passed out of the Criminal Jurisprudence Committee yesterday at a surprise meeting called immediately after the House adjourned.

I should begin, though, by acknowledging that the Legislative Budget Board (LBB) appears to have made a signficant improvement in their method of calculating fiscal notes. In the past, when the Lege increased sentences on more serious crimes, LBB routinely gave the bills "zero fiscal notes," which means they predicted no new costs must be added to the state budget to accomodate them. That's because when penalties increase, say, from 15 to 25 years, all of the extra incarceration costs must be borne by future Legislatures, not in the current budget. So legislators could pass penalty increases willy nilly claiming, with LBB's official imprimatur, that their bills would cost taxpayers nothing.

Of course, that's hogwash, especially when EVERY Legislature does the same thing. Over time these enhancements drive new prison building and heighten incarceration pressures in ways that are, in fact, very costly.

So I was glad to see a new twist in HB 8's fiscal note. Yes, they did declare the bill would have no new costs in the first five years, which I think is incorrect. But for the first time in memory, LBB actually calculated those future incarceration expenses and determined that the bill would require Texas to build 489 new prison beds within 20 years. While something tells me even that figure is low-balled (for reasons detailed below), simply attempting to calculate those out-year expenses marks a dramatic improvement in the cost information given to legislators. I congratulate LBB on this change in methodology. Including out-year costs is a helpful, new approach, and I appreciate them addressing this long-time shortcoming in their estimates.

That said, the HB 8 fiscal note still appears to avoid counting nearly all the obvious new costs from the bill. With apologies in advance for the length of this post, here's why:

According to the HB 8 fiscal note, "For fiscal year 2006, the Texas Department of Criminal Justice (TDCJ) received 633 offenders for the offenses of indecency with a child, and sexual performance of a child, where the offense was punishable as a felony of the second degree," approximately 537 of whom committed the offense against someone under 14. These are the numbers upon which LBB based its calculations.

But HB 8 would expand the statute of limitations on these crimes from 10 years after the victim's 18th birthday to 20 years, and LBB's fiscal note estimate does not assume ANY increase in the number of prosecutions resulting from that change. How could that be?

The only reason to expand the statute of limitations is to allow MORE cases to be filed. Even an increase of 10-20% in the number of filed cases, given the long, expensive sentences, would add substantial additional costs, including new costs in the first five years. The only way around that conclusion is to assume that the law will be ineffective, increasing the statute of limitations won't matter, and NO new victims will come forward as a result of the change in the law. If that's true, then why do it?

If the number of filed cases increased just 10%, in the first five years we'd be talking about 250 or so new beds required to house those prosecuted under the expanded statute of limitations. That fact alone makes the idea that only 489 new beds would be required in 20 years seem highly suspect.

Another provision of the bill would require GPS tracking for paroled certain offenders, and again, LBB reports that "The Department of State Health Services has stated that they anticipate no fiscal impact from the provision of the bill further specifying tracking services for civil commitment outpatients."

But GPS tracking is actually quite expensive, not just for the technology but for resources for monitoring offenders. One estimate I've seen found that GPS tracking costs $6-8 per day for "active monitoring," and $4-5 per day for "passive monitoring." HB 8 requires "real time" monitoring, which I assume falls into the "active" category. So whatever the number of offenders required to submit to tracking, by these estimates (depending on the tracking scheme) the state must pay between $2,190 - $2,920 per year. That's cheaper than incarceration, certainly, but it doesn't indicate a fiscal cost of zero.

What's more, GPS tracking makes it more likely an offender will be revoked to prison (since the only reason for it is to more closely supervise offenders to prevent violating parole terms.) But no increase in the number of revocations was tallied to determine the short or long-term costs to the state from more revocations.

As to the penalty increases, I must say I'd really like to see the actuarial details of LBB's "discrete event simulation model that calculates the difference in sentencing and release policy based on whether the offenders are treated as second degree felons or first degree felons." LBB correctly notes that

The provision of the bill that is expected to have the largest and most immediate impact is the provision that would enhance the punishment of the offenses of indecency with a child, and sexual performance by a child, from a felony of the second degree to a felony of the first degree if the victim of the offense is younger than 14 years of age.

I think they're wrong that this would have the most "immediate impact," since the statute of limitations expansion will likely increase incarceration pressures in the near term. But certainly the enhancements will have the greatest long-term effect on the budget.

At the 2006 estimated offense rate (and discounting additional cases from lengthening the statute of limitations) approximately 10,740 offenders will be convicted of these crimes over the next 20 years. The penalty for a second degree felony is 2-20 years, and the penalty for first degree felonies is 5-99. So those 10,000+ offenders will face potentially MUCH longer sentences, with any possibility of parole denied. Given that, although I haven't seen their model to assess its specific calculations, LBB's estimate that HB 8 would only require 489 new beds in 20 years seems to seriously short-change the real cost to taxpayers.

Finally, the fiscal note declares that "No significant fiscal implication to units of local government is anticipated." But that's absurd. While the expansion of the statute of limitations will result in more prosecutions and therefore more local costs, the biggest new cost may be the expansion of the death penalty to include child molestation. Capital cases are incredibly expensive, and many counties can barely afford to pursue them. According to this analysis, "In Texas, the Dallas Morning News concluded that a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years."

So let's say five counties per year pursue the death penalty once for this type of crime (or perhaps more likely, that no one else does and Harris County goes for it five times annually) - the cost by these estimates would be more than $11.5 million, or three times higher than if the same defendants received live without parole. If ten more capital cases are pursued, the cost would be double that.

So where does the zero come from?

For all these reasons, LBB's Fiscal Note lowballs the cost of HB 8. These estimates are highly political because everyone knows a high fiscal note makes a bill less likely to pass in a tight budget environment. In this case, Jessica's Law might be such a political hot potato that legislators would spend any price to avoid appearing to oppose it. Even so, I wish they were given more realistic cost estimates in case SOMEBODY found the courage to address the many problems with this bill.

See prior, related Grits coverage:

• Innocence reforms needed to make sex offender law palatable
• Sex offender Tuesday in House Criminal Jurisprudence
• House Corrections Committee: Community-based treatment more effective for sex offenders
• When tough on crime is hard on the coffers
• Victim advocates oppose sex offender enhancements
• Unintended consequence: Why the death penalty for repeat child molesters would harm children's safety

The state of Texas' mental health care: It's criminal

Focusing on one local case, the Navasota Examiner, of all places, ran a news story and an excellent editorial denouncing the state's failure to treat mentally ill defendants who've been declared incompetent to stand trial, and so wait around in local jails for months before a state hospital bed opens up. Take a look, and if you want more see prior Grits coverage of the subject.

DAs are wrong: Crime labs lack 'integrity'

On the Texas DAs' user forum on their website, an East Texas prosecutor complains about a defense attorney who is:

seeking the county to begin paying for independent drug analysis for indigents. We have a massive drug problem out here. We send all samples to the state lab, but apparently that is not good enough.

How rude of defense counsel to not believe state crime lab technicians, don't you think? Naturally our protagonist found a sympathetic audience among her fellow prosecutors. Another forum member replied that:

The defendant must still show the identity of the substance is going to be a significant factor at trial. Relatively few "affluent" defendants independently analyze contraband and I am not aware of significant problems with DPS Crime Lab analysis. Thus, an independent expert is not a "basic tool" integral to the building of an effective defense.

But it appears to me the defense attorney in East Texas is probably onto something, given recent revelations about irregularities and stolen evidence at DPS crime lab testing facilities. The Houston Chronicle's Steve McVicker reported today ("DPS officials were told of lax lab security," 2-21) that:

Texas Department of Public Safety officials were aware of security breaches in the handling of their drug evidence as recently as 2006 and as far back as at least 2003 — problems such as failure to log evidence out of storage, containers of marijuana left open and the lack of a monitoring system for a high-security drug vault — according to the agency's internal audits.

The revelation about the warnings comes in the wake of last week's arrest of a technician at the state's Houston crime lab after a DPS investigation discovered he apparently had been for years selling cocaine smuggled out of the lab.

So even if prosecutors claim to be unaware of "significant problems" with DPS crime lab analysis, most Texas newspaper readers are, and they've been going on for years. Reported the Chronicle:

In 2003, internal audits also found problems with the security and integrity of evidence at DPS labs in Austin, El Paso, Waco and Lubbock, in addition to Houston.

If the "security and integrity" of lab testing is questionable at at least five DPS labs, it sounds to me like the East Texas defense attorney is right on target to insist on independent analyses. I understand counties don't want to pay for that - they don't like to pay for attorneys to represent indigent defendants, either. But that's the cost of being "tuff" on crime if you don't want to convict innocent people. If lab analyses routinely lack "integrity," I don't see any other way to solve the problem besides giving defendants access to independent testing.

See Related Grits posts:

• Options for fixing Texas crime labs
• 2005 crime lab testimony from the ACLU
• HPD crime lab shows 'indifference to right and wrong'
• CJAC: Pork not probity for Texas crime labs

UPDATE: Dave Maass at the SA Current writes this week about a Bexar County case where deputies appear to have falsified information in a search warrant and crme lab tests accusing the defendant were debunked when the defendant's independent experts analyzed the evidence. Check it out. The problems with this case should also give pause to legislators who appear so anxious to jack up sentences via Jessica's Law without including new innocence reforms.

Castillo: Eyewitness testimony not enough

Speaking of corroborating eyewitness testimony and improving identification practices, Jaime Castillo has a column this morning in the SA Express News that shows why changes are needed. He's discussing Ruben Cantu, a San Antonio man executed based on the word of a single eyewitness who was apparently coerced by police. Now, even the DA who prosecuted the case thinks executing him was the wrong call. Wrote Castillo ("Texas legal system failed Cantu - whether he was guilty or not"):

Justice wasn't served in 1985 when prosecutors relied on a lone eyewitness, Juan Moreno, to convict Cantu. ...

As far as I can tell, this much has been proven: Moreno was a bad witness then and he's a bad witness now.

The fact that Cantu's prosecution bordered on a travesty is now not in much dispute. Sam Millsap, the former Bexar County district attorney who made the decision to charge Cantu with capital murder, has publicly admitted it was the wrong decision.

Chief among the problems was the case was built on an eyewitness — Moreno — who twice had failed to identify Cantu in photos shown to him by police.

On the third try, Moreno, feeling pressure by police, identified Cantu as his friend's killer.

"It's so questionable. There are so many places where it could break down," Millsap, who's now in private practice, told the Houston Chronicle in November 2005. "We have a system that permits people to be convicted based on evidence that could be wrong because it's mistaken or because it's corrupt."

Millsap's candor, unfortunately, is rare in this case.

The Cantu case shows how shortcuts taken in a rush to convict can haunt the legitimacy of a conviction and ultimately, of the entire justice system. Making penalties harsher without addressing the inadequacies of eyewitness testimony risks even worse punishment for innocent defendants, not to mention declining legitimacy for the legal system in the public eye.

Related Grits Posts:

• Requiring corroboration for eyewitness testimony might have saved Ruben Cantu
• New Mexico considers needed eyewitness reforms
• Nuther Dallas exoneration points to need for eyewitness reforms

Innocence reforms needed to make sex offender laws palatable

It looks like the array of sex offender legislation heard in the House Criminal Jurisprudence Committee last night was left pending in committee, though some of it could be voted out as early as next week. (See MSM coverage of the hearing here and here. I'd earlier discussed this legislation here.)

I couldn't be at the hearing, but one of my sources expressed surprise to hear the Tarrant County DA coming out against the 25-year mandatory minimum for first offenders in Rep. Debbie Riddle's HB 8 (Jessica's Law). David Montague of the Tarrant DA's office told the committee that children would be less likely to testify against a parent or close relative if the sentence was too harsh. (I'd encourage those interested to read Michael Connelly's terrific analysis at Corrections Sentencing about other problems posed with one-size-fits-all sex offender sentencing.)

Another key part of the bill would extend the statute of limitations on child molestation cases, and Montague supported that. But I think that's an awful idea unless the Lege simultaneously installs new protections against convicting innocent people.

In his State of the Judiciary speech yesterday, Texas Supreme Court Justice Wallace Jefferson acknowledged "the unfortunate reality that our criminal justice system, on rare occasions, convicts the innocent." Many of those "rare occasions" involve eyewitness testimony that turns out to be wrong. Indeed, just last month, James Waller in Dallas was released after serving 24 years on a child molestation charge that DNA evidence proved he did not commit.

Given that "unfortunate reality," it'd be irresponsible to extend the statute of limitations without installing new innocence reforms, especially improved access to DNA testing for defendants, requiring best practices for lineups and photo arrays, and corroboration for eyewitnesses who did not previously know the defendant. That's especially important when decades have passed between the alleged crime and the witness' testimony.

UPDATE: Vince has more here and here. Also, at the end of today's full session of the House, the Criminal Jurisprudence Committee announced a desk meeting to consider HB 8 upon adjournment, meaning the bill will likely be kicked out of committee then. NUTHER UPDATE: The bill was voted out of committee at a desk meeting on the House floor with a 5-0 vote, and 4 committee members absent. MORE from Chairman Peña.

Causes of Texas' overinarceration crisis

Via the Burnt Orange Report, here's a thoughtful, somewhat lengthy video explaining the sources and possible solutions to Texas' prison overincarceration crisis, that quotes Grits, Kuff, and MSM sources:

Leaders of mental health task force don't inspire confidence

Color me unimpressed with the makeup of the new "task force" on Texas prisoners' mental health ("Texas selected for study of mental health illnesses in state prisons," Feb. 19). Certainly Texas faces a mental health crisis in our corrections system (30% of Texas prison inmates are former clients of the state mental health system), but the folks put in charge of the effort lend little reason for confidence that their suggestions will adequately address the problem.

The task force will be led by Court of Criminal Appeals Chief Justice Sharon Keller, who has never demonstrated the least concern about these topics and who repeatedly thumbed her nose at the US Supreme Court over the question of executing the mentally retarded.

Other task force members include Williamson County DA John Bradley, a demagogue who is leading the charge in Texas for new prison building and to oppose treatment alternatives to incarceration. In addition, the rep from the Governor's office, Mary Ann Wiley, in 2005 recommended vetoing Madden's legislation strengthening the probation system, which gives me little cause to believe she'll support needed reforms on this task force.

The rest of the group includes state Sen. Robert Duncan, R-Lubbock; Lubbock County Sheriff David Gutierrez; Jim Bethke, director of the Texas Task Force on Indigent Defense; Mike Maples, director of mental health/substance abuse programs at the Texas Department of State Health Services; and Dee Wilson, director of Texas Correctional Office on Offenders with Medical or Mental Impairments.

For those who don't know these names, bottom line, the group's makeup basically spans the political spectrum from the moderate right to the far right, and only includes institutional players.

Where is the Advocacy Inc. represenative, the criminal defense lawyers' association, or for that matter any advocate for the mentally ill who doesn't work for state government? The predictable answer: Nowhere to be found. Like the Governor's Criminal Justice Advisory Council, this body's makeup virtually dictates ahead of time what recommendations they will or won't offer. They've excluded anybody who might aggressively advocate for mentally ill offenders, and instead seek recommendations largely from the folks whose policies caused the problems in the first place.

On its face this is not a group organized around the idea that significant reforms are needed. Indeed, I'd expect them to produce recommendations that essentially justify the status quo rather than reform it significantly. We'll see if that's true, and I certainly hope they prove me wrong. They're going to get their chance.

Dallas will hire jail guards with distant past drug use

Dallas Sheriff Lupe Valdez has taken heat for not hiring enough deputies to adequately staff the jail, but as I've pointed out repeatedly, nobody in the state can find enough guards. Now she's taking steps to broaden the potential applicant pool, and, perhaps predictably, she's taking heat for that too. Reports the Dallas News ("Drug standards eased for prospective jailers," 2-20):

Applicants for detention officer positions no longer will be asked whether they have ever purchased illegal drugs.

In addition, they now will be eligible for employment as long as they haven't used illegal drugs in the last 10 years. Prior to the change, applicants would be disqualified even if they had tried drugs one time – years, even decades, ago.

County officials said the changes would not add significant risk to the county or reduce the quality of jail employees.

"This will increase our pool. But we do not believe it will diminish or minimize the integrity of the type of people we're hoping to hire for the jail," said Mattye Mauldin-Taylor, the county's human resources director whose office is handling recruiting for the sheriff. "It's increased our risk moderately. But it's not like we're hiring drug dealers."

But Sheriff's Department labor associations aren't so sure the change is a good idea.

"I think that's inviting trouble," said Ben Roberts, president of the Dallas Sheriff Fraternal Order of Police. "Mismanagement of the jails got us into this situation, and now we're having to lower our standards to deal with it."

Stan Thedford, a former sheriff's sergeant who is president of the Dallas County Sheriff's Association, had similar concerns.

"Lowering our standards isn't going to help," he said. "I agree we should change with the times, but what they're trying to do to solve the hiring problem is not the answer."

I look at these last quotes and wonder, "What would her critics have her do?" The Sheriff, like everyone in Texas trying to hire prison and jail guards, is caught between a rock and a hard place. There simply aren't enough people applying to fill all the slots under existing rules and wages. And since past drug use is one of the most common disqualifiers for potential employees, it makes a lot of management sense to limit that prohibition to drug use in the past ten years.

To me, it's pretty foolish for the Sheriff's Association to say, "Lowering our standards isn't going to help." I'd respond that it will absolutely help with the inability to fill deputy slots, while potentially increasing the risk of employee misconduct by some unknowable percentage. OTOH, how would it help to continue to understaff the jail?

Certainly there are pros and cons to the decision (though I think the cons are overblown), but such criticisms imply Valdez really had a choice, and I don't think she did. Not filling the slots risks the jail could actually be required to stop taking new prisoners by the Texas Commission on Jail Standards (TCJS). So she has to hire new guards, and if this new policy lets her fill presently empty slots, it's certainly "going to help" keep that from happening.

The Sheriff is in a damned if you do, damned if you don't scenario where none of her options look good. After all, these problems festered for years before she got there and now she's got to make hard choices that should have been decided long ago. At this point she's right to act decisively despite her critics.

If she can't fix the jail's problems, Valdez certainly deserves to be held accountable when she comes up for re-election next year. But to judge by their rhetoric, a lot of folks, most prominently the deputies' unions and the Republicans she beat out to take the office, apparently see her ouster as their actual goal, with the jail's woes merely a means to that end - something to exploit, not a problem they really want to solve.

That strategy will prove short-sighted if TCJS forbids taking new prisoners because of understaffing, or worse, if the feds take control of health services.

RELATED: From the Houston Chronicle this morning, "New Dallas DA brings new approach to 'failed system.'"

Gall-bladder free blogging since 2007

Light blogging from me the next couple of days because I'm going in for minor surgery this morning. Next time you hear from me I'll be blogging gall-bladder free. Until then, wish me luck and I'll be back soon.

UPDATE (2/20): Thanks so much for all who sent kind wishes via the comments and email. Gall bladders are removed as a day surgery these days, and I was back home by dinnertime. I'm doing just fine, though my belly's still pretty sore.

BTW, if you've not known someone who's had this done recently, this type of surgery, which used to be much more invasive, is a pretty impressive medical marvel. They make four small incisions - one through the belly button (Ouch! - still painful) and three spaced on the right side of the midsection. Then they pump your belly up like a tent with carbon dioxide through one incision, and through the others go a camera, light, and tools. The surgery is done by remote looking at a video screen. They didn't even use stitches to close me up, just something the surgeon described as a medical version of superglue. Pretty darn impressive.

Of course they're still removing an organ, even if it's one I didn't particularly need, and I definitely feel like somebody's been messing around in there. So I'm going to take it easy for another day or two and enjoy the great pain reliever drugs they give you after surgery. Hard to say how much blogging gets done in the meantime, but thanks again for the support, and rest assured more Grits will be coming your way soon.

Texas criminal justice news roundup

Several news items caught my eye this morning:

• Harris County Jail Can Be Deadly. The Houston Chronicle reports that 101 people have died in the Harris County Jail in the past six years.

• Nuther TYC Scandal. At the Texas Observer, Nate Blakeslee tells about yet more allegations of abuse at a Texas Youth Commission facility.

• Incompetent Detention Policy. The SA Express News localizes the the story of Bexar County jail inmates who've been declared mentally incompetent but who wait for months in jail to receive "competency restoration." The Lufkin Daiy News editorialized that the state needs to fix the problem.
  

• DPS Crime Lab Corruption. A scientist stole kilos of cocaine over two years from a DPS crime lab after it had been tested. No wonder defense attorneys want to hire independent experts.

• Exonerated. The Austin Statesman has an extensive story on Kerry Max Cook, who was famously exonerated from Texas death row because of extreme prosecutorial misconduct in my hometown of Tyler.

• Meth Markets. US laws banning meth precursor ingredients have not only boosted Mexican meth production, but also the number of Mexican meth addicts.

Creative Prison Design

The always thought-provoking Subtopia lets us know about the Creative Prison design project from the UK. I don't suspect these types of rehab-oriented units are what the Lt. Governor and prison builders are talking about for Texas. but it's clear to me that prison architecture has a lot to do with prison safety, and there are a lot of good ideas here.

Innocence Project reviewing Dallas DNA in hundreds of cases

Reports the Dallas News ("Innocence Project to review Dallas County convictions," Feb. 16):

The extraordinary number of DNA-based exonerations in Dallas County has led to a unique partnership between prosecutors and advocates for those who may be wrongly convicted.

District Attorney Craig Watkins has agreed to allow the Innocence Project of Texas to review whether DNA tests should be done in any of the cases of 354 people convicted of rapes, murders and other felonies as far back as 1970.

Most of those requests already have been denied by trial court judges on the recommendation of former District Attorney Bill Hill.

In response, Rod Davis at D Magazine's FrontBurner blog says this is an example of

WHY VOTING MATTERS

Under former DA Bill Hill, this never would have happened. We'll never know if Toby Shook would have opened these DNA cases. But we do know that Craig Watkins has.

I've heard a lot of talk over the years about whether focusing on innocence cases is a useful strategy for opposing the death penalty. Bottom line, in the end, I doubt it. But it may be an exceptionally useful electoral strategy for Texas DA candidates running against "tuff" incumbents, now that Craig Watkins has blazed the path. I know Texans want to be tough on crime, but I also think, for the most part, they want to be tough on the right guy.

Dallas Overcrowding Snapshot: Jail a waste of money for many low-level offenders

The state has ordered Dallas to either staff up its jail or reduce the inmate population by 1,000. According to the Dallas news article mentioned in the previous post, Dallas Police Chief David Kunkle thinks that "the release of hundreds of low-level felons might cause Dallas' high crime rate to climb as the city's petty criminals have more time on the streets to commit their offenses." Reported the News:

"A relatively small number of offenders have a disproportionate impact on the crime rate," Chief Kunkle said. "If those guys aren't dealt with in a way that keeps them in jail as much as possible, then that's going to drive crime up."

So who are the folks Kunkle is worried about releasing? Here's an example of the worst of the worst critics could point to of the 700 released so far:

Many of those who received plea deals to thin out the jail population have lengthy criminal records for nonviolent offenses. For example, George Skotnicki took a plea deal Thursday for stealing an extension cord Feb. 9. The 54-year-old homeless man was twice convicted of theft in 2002 and also has two previous convictions for delivery of a controlled substance.

Mr. Skotnicki sounds really dangerous, doesn't he? A terrible threat to us all. A 54 year old homeless guy who stole an extension cord.

You tell me: Do you think the public would be safer spending $40-$50 per day on Mr. Skotnicki for the next 30 days in jail (more if he has significant healthcare costs), or would Dallas be better off if somebody spent $1,200-$1,500 over the next 30 days to find a place for him to live, help him access community-based medical or mental health treatment, and get him a job?

Think about it: For Skotnicki, a homeless petty thief, it'd be nearly as cheap to pay his rent, utility bills and tuition to a local community college as to incarcerate him! It'd cost taxpayers about the same, and then he wouldn't need to steal an extension cord.

If the goal is to maximize public safety, we're spending our money on the wrong things.

Warrant Roundup wasn't cleared with overcrowded jails

A statewide plan for police to roundup drivers with outstanding warrants for traffic offenses apparently wasn't cleared with local jail administrators and could create a short-term, statewide jail overcrowding crisis early next month.

In Dallas, where the county has been ordered to reduce inmate populations by 1,000 in a very short time, they called off the plan after county officials found out at the last minute and begged the city not to participate. Reported the Dallas News ("Dallas County frees 700, will boost staff," Feb. 16):

A major wrinkle to the county's plan to reduce the jail population nearly emerged Friday, when county officials learned of the city of Dallas' planned involvement in a statewide, weeklong roundup of people with Class C misdemeanor warrants – the very low-level offenders the county has been trying to move out of the jail.

After some urgent phone calls placed late Friday, the city decided not to participate. Class C misdemeanors include traffic-related offenses such as speeding, low-level assaults and other minor crimes.

Dallas City Marshal Joe Polino said during a news conference Friday that the city had 400,000 outstanding Class C warrants with a value of $118 million.

Mr. Price said such a roundup – something he learned about only late Friday – would have been counterproductive to efforts to ease the jail crisis.

I wonder if the other police departments participating in the Great Warrant Roundup have told their local, overcrowded jails they're going to be hauling in dozens of low-level traffic violators? Bet not, if they didn't in Dallas.

Police do these warrant roundups because they're lucrative - traffic violators are a big source of income, and as fines have grown steeper over the years, a significant percentage of drivers don't or can't pay. So when police play bill collector, the jails inevitably become temporary debtors prisons. That's just the way it is.

The problem comes when the jails are full of people you've actually charged with crimes. Can we afford to incarcerate everybody both who break the law and also those who cannot afford a $1,000 surcharge for a drivers license? Many counties will find out the week of March 3.

Violent Offender Registration May Be Headed South

I just heard a rumor that the bill creating a registration system for Violent Offenders in Texas modeled on the Sex Offender registration program (HB 105 by Rep. Debbie Riddle, which I discussed previously in this blog post) will likely be pulled from the Corrections Committee agenda on Monday and not heard on that day.

The reason, says my source: The idea is unworkable and law enforcement already can't handle the workload from so many sex offender registrees. Plus, the DPS criminal convictions database already lists all violent felons.

'Round the blogs

Looking to satiate your need for Texas criminal justice and legislative news? Read these other blogs for a while and I'll get back to you soon:

• The Back Gate
• Capitol Annex
• Austin Criminal Defense Lawyer
• Houston's Clear Thinkers
  

While you're surfing, visit Kuff to tell him congrats on the birth of his new daughter Audrey, seen here under the bili lights.

Sex Offender Tuesday in House Criminal Jurisprudence

It looks like Tuesday is sex offender day in the Texas House Criminal Jurisprudence Committee. See their agenda here. What a heavy topic for their first day of real committee work!

When I see all these git-tuff proposals targeting child molesters and sex offenders, I can't help but think of James Waller, who was the 12th recent person exonerated in Dallas County by DNA evidence. Waller was convicted in 1982 of the rape of a child, and he was lucky there happened to be DNA evidence available to disprove his conviction 24 years later. Many such cases are made solely through eyewitness identifications, as in Waller's case, which are notoriously inaccurate.

Given Waller's case, as Texas prepares to make sentences for child molesters more "tough," I wonder why isn't more attention being paid to making sure the right person is being punished?

Sometimes it seems like public safety really isn't the goal. I mean, it's not as though Texas isn't plenty tough on sex offenders already, especially those who commit crimes against children. According to the House Research Organization (p. 3):

Offenders convicted a second time of the two most serious offenses against a child – sexual assault of a child or aggravated sexual assault of a child – automatically receive a life sentence under Penal Code, sec. 12.42(c)(2). Inmates sentenced to life in prison are eligible for parole only after serving 35 years, without consideration of time off for good conduct. Parole can be granted to these offenders only upon approval by at least five of the seven members of the Board of Pardons and Paroles.

Even so, Reps. Riddle and Phillips would get tougher on sex offenders, still, by removing their few remaining options for parole. (That's problematic for at least two reasons: it makes inmates more dangerous while inside prison and massively boosts healthcare costs for elderly prisoners.)

Given documented problems with eyewitness testimony, it would especially concern me to expand the statute of limitations to 20 years after the victim's 18th birthday, as Rep. Riddle proposes. That means cases would be more likely to turn on eyewitness testimony and less likely to involve DNA or other tangible evidence. I just turned 40, and events that occurred when I was ten years old, I assure you, aren't clear enough to me for anyone to rely upon in court beyond a reasonable doubt.

I hear all sorts of ill-informed, do-gooder rhetoric supporting these types of laws, particularly from liberal Dems. On the Burnt Orange Report, Todd Hill, who courageously recounts his own experience with child abuse, improperly draws conclusions from his own experience that just don't hold up to scrutiny. "Trust me," he writes, "a pedophile never stops no matter how old they are." But it's just not true.

The best research on the subject says child molesters are far less likely to recidivate than other types of offenders. This recent study from Washington State (see the chart on p. 12) found that:

Sex offenders who victimize children have the lowest felony recidivism rates as well as the lowest sex (2.3 percent) and violent felony (5.7 percent) recidivism rates.

By contrast, Texas' statewide felony recidivism rate is 28.3%.

So I'm sorry, Todd, I won't "trust" your word over those who have applied social science methodologies to the question. I regret your pain and the trauma you went through, but there is a reason an enlightened society does not allow crime victims to decide sentencing. It's too easy for emotion to trump facts and logic. That's the point I think we've reached in the sex offender debate. It's ridiculous to be "tougher" than we are - we've reached the maximum level of "tuffness" that generates any public safety benefit and now politicians are just grandstanding on the topic, often in ways that make us less safe.

Of the other sex offender bills up Tuesday, all by Democrats, two would implement new residency restrictions on sex offenders and another attempts to keep them out of public parks. (Regular readers know I think such residency restrictions harm public safety more than help it by boosting absconder rates and driving sex offenders underground instead of complying with their supervision because they can't find a place to live.)

The last bill up, by Chairman Peña, would allow anonymity for victims receiving compensation from the state victim compensation fund. I don't know much about how that fund is administered, but I've gotta say I don't like the idea of a state fund doling out compensation to anonymous people, you know what I mean? If the victim went to the authorities with a complaint and the accused person was convicted, their name is already public - certainly the offender, who is the only person a victim might fear, already knows who they are.

So in sum, I don't like any of these bills. None are necessary; all risk potentially greater harm than any likely benefit. But I'm discouraged that I suspect one or more will pass, especially with Democrats like Mr. Hill urging their legislators to "Steal the legislation" in an ill-conceived strategy to out-tough the Republicans.

If Democrats, who control the committee with a 7-2 majority, did want to "steal" this legislation, they should do so by remembering James Waller and making sure that, for the toughest penalties on the books in Texas, safeguards are in place to ensure that no innocent person is ever convicted again. Those reforms might include:

• Improving eyewitness identification procedures.
• Requiring corroboration for eyewitnesses that did not previously know the defendant.
• Giving indigent defendants access to independent crime lab experts.
• Require District Attorneys to maintain an open file policy to ensure disclosure of exculpatory evidence.

Getting reflexively tuffer without fixing these problems makes little sense to me. If we're going to enact draconian punishments that follow people around for life, we need to do a better job of making sure we're punishing the right people.

Ask Mr. Waller.

BLOGVERSATION: See excellent commentary on the subject from Corrections Sentencing, which calls for differentiating punishments for sex offenders in much the same fashion as suggested by the Texas House Corrections Committee interim report, and another post supporting Jessica's Law from Todd Hill at BoR. Also, meet the Sex Offender Issues blog.

Border Patrol shooting case points to unfairness of federal sentencing guidelines

For those interested in the case of the two Border Patrol Agents who famously received stiff sentences for shooting an unarmed, fleeing drug dealer in the back then lying about it, the Texas Western District US Attorney has put quite a bit of information online about the case, including the trial transcripts. Doc Berman has had the best commentary on the subject, and I refer you to his most recent post on the topic and the links to others at the end.

For my part, this case fascinates me, but the federal issues involved are beyond my ability to knowledgably debate, which is why I've mostly left it to Berman and others to cover the subject even though it's a Texas case. On the one hand, what the officers did deserved prosecution. On the other hand, I look at their sentences of more than ten years for actions taken in the heat of the moment, then compare them with the seven year probated sentence Tom Coleman received for perjury after the Tulia drug stings, and I understand why some people think the sentence is too harsh.

Here's the rub, as I understand it: The federal sentencing guidelines established by Congress mandated these harsh sentences. It's true prosecutorial discretion to push for the max after a plea bargain was rejected also contributed, but that's done in every case. So for Congress to revisit the sentences would require revisiting what I and many others think are fundamentally unjust federal guidelines and mandatory minimums. In other words, Congress would conceivably have to alter rules that unfairly hike sentences for MANY defendants, not just these two.

That's why I'm glad Doc Berman and many on the right are focusing on this. It's not that I think Border Patrol agents deserve more (or less) justice than anyone else accused of a crime. But the context allows even the most arch conservative who might not otherwise be able to hear such arguments to listen, understand, and even agree with them. Berman's dogged articulation of the sentencing implications raised by these cases, to me, opens up an interesting opportunity to discuss these arcane federal sentencing rules with a conservative audience that's anxious for good arguments, and I'm glad he's taking it.

Welcome state employee readers!

I've been pleased to notice that since the legislative session started, on average between 5-7% of Grits for Breakfast readers on weekdays come from internet domains that end in .state.tx.us, which is the domain ending for most state agencies, including legislators and their staff.

That means more than one in 20 Grits readers are probably viewing this site from a state of Texas owned computer. What's more, the increase (in the legislative offseason that percentage hovers between 1-2%) comes at a time when this blogs' readership in general has increased. I'm awfully glad, as well as flattered, that folks working on these public policy topics in state government apparently find the information here useful.

So to state employees and new readers I say "Welcome." Be sure to check out the archives, tell your friends, and if you're afraid you might miss something, you can always sign up here to receive a daily email with links to all the previous day's posts:

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Lawsuit could force Texas to treat mentally incompetent defendants

A lawsuit by Advocacy Inc. in an Austin court may finally force Texas to address the problem of mentally ill defendants who've been declared "incompetent" sitting around in county jails for months awaiting mental health services, the Austin Statesman's Andrea Ball reported this morning ("Mentally ill in jail too long, lawsuit charges," 2-15).

(UPDATE: Here's a copy of the original filed petition, and another article from the SA Express News.)

I'm glad to see that - it's about time, IMO. I'm also proud to mention that this blog played a small role in Advocacy Inc. getting involved. Ball gave a good backgrounder on the subject:

The lawsuit from Austin nonprofit group Advocacy Inc. says about 100 defendants with mental illnesses across the state have been declared incompetent to stand trial but are awaiting admission to a state psychiatric hospital.

That delay clogs local jails, slows the legal system and violates inmates' right to due process, said Beth Mitchell of Advocacy Inc.

Advocacy wants a Travis County court-at-law judge to force the state to take custody of the inmates and help them become competent to stand trial by sending them to a state hospital or a community treatment program.

"They can't just hold these people indefinitely," Mitchell said.

Officials from the Texas Department of State Health Services, which runs the state psychiatric hospitals and is named as a defendant in the lawsuit, did not immediately have a comment Wednesday.

The lawsuit comes as state psychiatric hospitals struggle to deal with a growing number of "forensic patients."

Accused of offenses that range from public intoxication to murder, the patients are considered incompetent to stand trial, so they remain in the hospital until they are able to participate in their defense.

Even though the number of forensic beds statewide grew from 399 in 2001 to 738 in 2006, there are not enough for everyone, the lawsuit says. So, until hospital beds are available, defendants sit in local jails.

I hope this lawsuit finally brings this subject to a head. I know of one case where a defendant waited in this legal limbo more than six months. The Legislature could solve the problem, and should, by just ponying up for more "forensic beds." Sorry guys, I hate to be the one to break it to you, but when you establish laws that strip people of their rights, you then must pay for the process that allows them to be regained - that can't just be the end result!

Some mental health advocates, believe it or not, don't want to include funding for incompetent defendants in a big funding package for improving state mental health services. The reason: There is a bias among advocates - for the most part a justified one - toward de-institutionalization and enhancing "community-based" mental health services instead of hospitals. I understand that, and I agree it would be better if Texas community MHMR centers could provide competency restoration services. But right now, only the one in Houston does, and you can't just leave these people laying around in jail indefinitely until the mental health system gets its act together.

This lawsuit reminds the state, and hopefully legislative budget writers, that no advocacy group's political agenda nor any philosophical dispute over funding strategies gets to override defendants' constitutional rights - even, perhaps especially, defendants who've been declared mentally incompetent by a court. Then, IMO, the state assumes responsibility for that defendant, and has an obligation to provide the mental health treatment a judge said is required before the defendant can knowledgably assist in their own defense.

Good luck to Advocacy Inc. on the case. I hope the Lege ponies up and just makes your lawsuit unnecessary. In the meantime, see prior Grits coverage of this topic:

• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails
• MH funding not enough, but better than a sharp stick in the eye