JEHT Foundation closure a blow to criminal justice reform

News came on Monday that the JEHT Foundation, a philanthropic charity out of New York that has funded a great deal of criminal justice reform work in Texas and around the country, will cease giving grants and close its doors in January because their money was invested with alleged Wall Street crook Michael Madoff who apparently lost all their money in a $50 billion "ponzi scheme." You can read the announcement from their President Robert Crane here.

Along with George Soros, the JEHT Foundation was one of the largest funders of progressive criminal justice reform work nationwide. According to the New York Times:

When Jeanne Levy-Church created the JEHT Foundation in 2002 to promote justice, equality, human dignity and tolerance, she tapped into investments run by Bernard L. Madoff.

Those investments were initially made more than three decades ago by her father, Norman Levy, who entrusted his real estate fortune to Mr. Madoff. Financed solely by regular contributions from Ms. Levy-Church, the foundation gave away more than $75 million over the next few years.

But on Monday, the young foundation announced that it would cease operations by the end of January — a victim of the same investments that made it a star in liberal philanthropic circles. “The returns had been steady and strong for all these years,” said Robert Crane, the foundation’s chief executive. “It was shocking.”

Mr. Madoff’s investment firm, Bernard L Madoff Investment Securities, collapsed last Thursday when federal regulators arrested him on charges that he had masterminded a scheme defrauding investors of $50 billion by his own estimate. ...

Ms. Levy-Church and her husband, Ken Levy-Church, supported JEHT each year with a contribution from their Madoff funds. There will be no more.

“Our programming is totally dependent on the ongoing funding, so for all intents and purposes it has ceased,” said Mr. Crane, JEHT’s chief executive. “People with grants currently in hand will keep that money, of course, but we can’t make good on pledges and grants that are for multiple years.”

The foundation’s 24 employees are losing their jobs, and organizations like Human Rights First, the Center for Investigative Reporting and the Juvenile Law Center are losing revenue.

Another foundation sustained by the Levy-Church fortune focused on sustainable food policies must also shut its doors because of the Madoff debacle.

The JEHT Foundation was particularly important because it had undertaken to finance grants in areas like civil liberties advocacy and criminal justice reform that more traditional liberal foundations had considered too edgy to support.

In Texas, JEHT in the past has supported criminal justice advocacy work at the ACLU of Texas, the Texas Criminal Justice Coalition, and the Innocence Project of Texas - all organizations I've worked for during periods when they received JEHT support - as well as the Texas Defender Service and probably other reform groups I'm not aware of. One of JEHT's larger, recent campaigns in Texas supported voter registration work among ex-felons.

It's hard to know what impact JEHT's closure will have - they're not rescinding grants that were already let, but multi-year grants won't be honored and JEHT will not be issuing new funds for these types of projects.

This is a major blow to the criminal justice reform movement nationally, but at the same time JEHT's prior work has already helped build up a new cadre of skilled activists on these topics who didn't exist just a few years ago because nobody was providing them professional-level support and development. So even if JEHT never gives another dime, the foundation will have spawned a legacy that will outlive its formal, legal structure.

While the foundation's denouement was a disappointment, the contributions by Crane and Co. have been significant and much appreciated. They've financed much important work that will continue to impact criminal justice policy in the coming years even now that their money has dried up.

BLOGVERSATION: See more from Daily Kos, Thinking Outside the Cage, ForPeace, and MoneyLaw. See also this video from foundation E.D. Robert Crane.

MORE: See the New York Times' extensive coverage of Madoff's fraud, which they describe as the first international ponzi scheme.

AND MORE: From the Dallas News, "JEHT funding for Dallas DNA tests already granted."

Sunset Testimony: Merger ignores underlying TYC trends, biggest barriers to improvement

The Sunset Commission will accept written comments about the proposed merger between TYC and TJPC and other subjects addressed in the Sunset report through 5 p.m. on Friday. You can send public comments to sunset@sunset.state.tx.us.

I told Sunset Commission Chairman Carl Isett I would encapsulate my oral testimony from Monday's Dec. 15 public hearing into written form and submit it this week, and state Sen. Juan "Chuy" Hinojosa suggested that when I did, I should post it on the blog, so here it is, expanded from several prior Grits posts:

* * *

Simply merging the Youth Commission and Juvenile Probation Commission won't solve the myriad problems described by Sunset staff facing Texas youth prisons and might result in negative, unintended consequences.

Merger Ignores Biggest Problems

To the extent a merger is done with an eye toward reducing expenditures, it could actually make matters worse because most of the major problems identified by Sunset staff - inadequate mental health treatment, lack of special ed instruction, oversized facilities, etc. - require more resources, not less, to solve. Cost savings predictions also ignore the need for investment in other areas like public schools and healthcare that affect juvenile justice.

Why Not Embrace Blue Ribbon Panel Suggestions?

Sunset staff (who are government efficiency wonks, not juvenile justice experts) failed to advocate a shift to smaller, Missouri-style facilities or a rehabilitation model that conforms to widely acknowledged best practices aimed at reducing recidivism. The gubernatorial Blue Ribbon Panel's detailed suggestion (pdf) in 2007 for reforming TYC along these lines was sadly defenestrated by the adult-prison transplants who were running the agency at the time and was never revived.

Given my druthers, I'd prefer the Sunset Commission had revisited and drawn more heavily from those Blue Ribbon Panel suggestions - they're proposing to take the agency in a different direction than the one suggested by most juvie specialists.

Merging Parole with Counties Makes Sense

There is one area where I agree a merger is justified: TYC's parole services should be managed by county probation departments to create more seamless reentry networks and to ensure that locals are engaged with the kids from their community throughout the process. Reentry after leaving TYC is difficult and local probation offices have more resources and connections to help youth succeed. TYC already contracts for parole services with more than 30 counties, so there's an existing model for how this could work that's transferrable to other jurisdictions.

Beware Unfunded Mandates for Counties

The Sunset report downplayed too much (IMO) the financial impact of downsizing TYC on counties at a time when the Legislative Budget Board says youth inmate populations will be rising. There's a pilot grant program suggested to reimburse counties for costs, but it appears underfunded and speculative whereas if more TYC kids must be handled by counties, those costs will be specific and concrete.

Likely most counties would seek to identify private residential placements to manage these offenders, but the truth is there simply isn't enough private capacity out there right now to pick up the slack if LBB's inmate population projections hold. The Sunset report and the LBB projections, as far as I can tell, cannot be mutually justified - something's got to give.

From the data in Sunset's financial analysis, I'm convinced a merger cannot save the state money, as the report predicts. There are just too many questionable assumptions that will not bear out upon implementation.

Overstating Savings from Facilities Closure

The only absolute, for-sure savings is around $600,000 annually from eliminating five duplicative executive slots. But the rest of the projected annual savings - $27.6 million - is entirely speculative. It's based on the assumption the agency will close three facilities and lay off 587 workers, as well as "reducing TYC central office salaries by 10%."

However, the recommendation ignores the fact that TYC has already recently closed three facilities – San Saba, Marlin, and the Sheffield Boot Camp - and two others were de-funded by the Legislature and are currently paid for from “savings” due to understaffing at other units. Thus there would be no savings from the closures compared to TYC's current budget. Plus, the proposal comes at a time when TYC's inmate population is rising. According to the agency's response to the Sunset Commission

The Legislature appropriated funding for an average daily population of 2,292 in institutions. Currently, institutional populations are 7.8% under that number, while the population is projected to increase. If the three facilities identified in the Sunset report were closed, the agency would have insufficient capacity for serving the projected population.

The Sunset report categorizes the 587 layoffs as a loose guesstimate and said savings could be "up to" that amount, implying they could also be, perhaps substantially less. After all, we're reminded later in the report, it was only in 2007 the Legislature added 516 new staff slots at TYC (p. 64) because the agency was understaffed and otherwise couldn't meet its statutorily required 12-1 staffing ratio.

Plan for Inmate Population Increases

Since that time, the number of youth in TYC declined to half the number where the agency maxxed out just a few years ago, so apparently the Sunset Commission believes that means the new staff aren't needed. But nowhere in the detailed footnotes to the section on the merger do we find any reference to the Legislative Budget Board projections that tell us to expect the state's youth prison population to rise again until the agency is 23% above capacity by 2012. If that happens, the idea of slashing 587 employees (two years after adding 516) will begin to look extremely short-sighted.

Also, the Sunset report assumes fewer youth will go to TYC and instead be handled by local probation departments. Without assessing those costs with any specificity, the report insists that "This initial amount could be drawn from TYC's previous budget and could be supplemented with lapsed TYC funds, if available," adding that as a last resort the Department could "request additional startup funding from the Legislature."

That's the part that keeps tripping me up. It seems obvious that private placement handled by dozens of counties will be a more expensive proposition than when those kids are all handled by a single state agency. But the Sunset report assumes such a switch would save money. I don't think that's true.

LBB Projections Ignored

Sunset failed to base its analysis supporting facility closures on the Legislative Budget Board's official projections regarding youth crime and incarceration in their five year population estimates (pdf), which are used to set agency budgets.

In 2007 the Legislature took steps aimed at reducing inmate populations at the Texas Youth Commission, including shifting 19-20 year olds to TDCJ and refusing to take misdemeanants at state youth prisons. The population drop can be seen most dramatically in the number of releases. TYC released 4,375 inmates during fiscal year 2007, up from 3,554 in fy 2006. By comparison, the number of new inmates entering TYC decreased from 3,462 in fy 2006 to 2,994 in fy 2007 and an estimated 2,090 in 2008 (based on the monthly rate for the first seven months). LBB predicts the new level of intakes will hold steady at 2,090 over the next five years.

Those declines mainly represent implementation of a new law disallowing judges from sending misdemeanants to TYC, sending 19 and 20 year olds to TDCJ, reduced lengths of stay, and reduced numbers from a handful of counties that essentially quit sending kids to the agency. Indeed, the reduced numbers have allowed TYC to meet minimum staffing requirements for the first time in years.

More Changes Needed to Keep Inmate Numbers Down

TYC's reduced inmate population at first seemed like it might be sustainable, particularly given that juvie crime is declining overall. The Sunset report notes that the "Texas juvenile arrest rate decreased between calendar years 2005 and 2006 (1.3 percent) following a decrease between calendar years 2004 and 2005 (8.3 percent)." Not only are arrests down, says LBB, Texas' overall juvie population is growing at a slower rate than in the past.

Even so, TYC's reduced inmate population will be shortlived unless more is done to reform the system. Today TYC operates at 6.5% below maximum capacity, and will slightly exceed max capacity in FY 2009, says LBB. But it's what happens after that which made me sit up and take notice. LBB predicts TYC's inmate population will resume fairly rapid growth in the near term, rising to 13.5% above apacity by 2010 and shooting up to 23.3% above capacity in 2012.

The worst possible outcome would be to dump a bunch of the worst-behaved kids in the state on county probation departments who're ill-equipped to handle them and then fail to provide adequate resources. If this merger is going to happen, the plan must accommodate these new inmates instead of pretend they're just not coming. Downsizing TYC cannot result in a blatant, unfunded mandate for counties.

So the situation is this: Juvie crime is declining but total commitments to TYC will increase by about a quarter over the next four years as the agency's inmate population creeps back up toward their previous, higher levels. By contrast, LBB projects the increase in Texas' juvie probation population will be de minimus over the same period, with the number of juvie probationers overall expanding just .03% annually.These are not arguments for downsizing.

That said, the adult system predicted massive overcrowding just a couple of years ago, but reforms implemented by Rep. Madden, Sen. Whitmire and their colleagues staved off that increase for the foreseeable future by expanding treatment and diversion programs. The Legislature could do the same for TYC by beefing up diversion resources at counties, perhaps through the pilot grant program Sunset proposed. But unless such changes are enacted, merging and downsizing TYC seems premature and likely to renew the type of chronic overcrowding problems the agency has only recently overcome.

* * *

See related Grits posts:

• TYC Tidbits
• Most speakers at Sunset hearing oppose TYC, TJPC merger
• Merger won't solve all TYC's problems, may create some
• Sunset: TYC treatment programs failing miserably
  
• Sunset: TYC, county probation, don't gather, share enough information
• Would juvie probation be de-prioritized if merged with TYC?
  
• Will TYC-TJPC merger improve juvie corrections?
• Pondering the economics of TYC abolition
• Sunset's plan to abolish TYC
• What do you mean "abolish TYC"? A conversation with John Whitmire
• Self-paced learning at TYC the 'least effective' approach
  
• A closer look at the 'Missouri Model' for juvenile corrections
• TYC commitments to grow drastically despite declining juvie crime

SEE ALSO: The Texas Criminal Justice Coalition's written response to the Sunset Staff Report and TYC's official agency response.

TYC Tidbits

Two items related to the Texas Youth Commission deserve attention from Grits readers interested in juvenile justice: A guest column in the Abilene Reporter-News asks, "Is TYC Worth Saving?," while the Waco Tribune Herald reports that authorities are investigating five inmate on inmate sexual assaults at the TYC unit in Mart.

In other TYC-related news, Sunset Commission Chair Carl Isett announced they would leave the public comment period for Monday's hearing open until Friday at 5 p.m., so anyone who wants to get in their two cents worth about TYC, TJPC, or the Office of Independent Ombudsman (for that matter, also the Texas Commission on Jail Standards) should let the committee know what they're thinking. You can email comments to them at sunset@sunset.state.tx.us.

"Fast, Bold, and Lethal": Cartel assassins getting good at their jobs

The Washingon Post has a feature describing the squads of assassins working for multinational drug cartels, some of them former military and counter-drug personnel trained by American special forces, who have turned murder nearly into assembly-line duty in Juarez and other contested drug trafficking battlegrounds. ("In Mexico, assassins of increasing skill," Dec. 12). For the most part. these squads of assassins are used by cartels against one another battling over turf. But increasingly they also are targeting Mexican law enforcement who refuse to be corrupted. The story opens:

The hit was fast, bold, lethal. Jesús Huerta Yedra, a top federal prosecutor here, was gunned down last week in a busy intersection 100 yards from the U.S. border in a murder of precise choreography.

In Mexico's chaotic drug war, attacks are no longer the work of desperate amateurs with bad aim. Increasingly, the killings are being carried out by professionals, often hooded and gloved, who trap their targets in coordinated ambushes, strike with overwhelming firepower, and then vanish into the afternoon rush hour -- just as they did in the Huerta killing.

The paid assassins, known as sicarios, are rarely apprehended. Mexican officials say the commando squads probably travel from state to state, across a country where the government and its security forces are drawing alarming conclusions about the scope and skill of an enemy supported by billions of dollars in drug profits.

"They are getting very good at their jobs," said Hector Hawley Morelos, coordinator of the state forensics and crime laboratory here, where criminologists and coroners have been overwhelmed by more than 1,600 homicides in Juarez this year. "The assassins show a high level of sophistication. They have had training -- somewhere. They appear to have knowledge of police investigative procedures. For instance, they don't leave fingerprints. That is very disturbing."

Alejandro Pariente, the spokesman for the attorney general in Chihuahua state, said, "They are called organized crime for a very good reason. Because they are very organized."

The whole disturbing story is worth a read. Grits has pointed out other reports in the past that these same commando groups, most prominently Los Zetas, were training young gang members on the US side of the border as cartel assassins and agents of Mexican gangs. So far, the US side of the border has been spared that kind of daily carnage, but with competition over distribution routes heating up among multiple, powerful criminal gangs and the Mexican government unable to stop it, how long will that remain true?

Senate Dean promotes treatment options for nonviolent offenders

The Longview News-Journal has excerpts from a graduation speech given by Texas state Sen. John Whitmire to offenders who've completed the state's new DWI treatment program in Henderson ("Whitmire: Programs needed for nonviolent offenders," Dec. 16):

The chairman of the Texas Senate Criminal Justice Committee, said Monday that the state needs to be more proactive in creating programs for nonviolent offenders within the prison system.

State Sen. John Whitmire, D-Houston, told more than 130 graduates of East Texas Treatment Facility's DWI Recovery program — formed after Whitmire introduced its legislation in 2007 — that additional recovery programs are the ticket to reforming the state's prison system.

"We've done a real poor job dealing with nonviolent offenders," Whitmire said. "When you're out drinking and driving you put me, my family and others at risk. But when you're not drinking I don't think you're a threat to society."

The six-month program teaches DWI-convicted inmates from across the state life skills, alternatives to drinking and driving and the medical lifestyle and stress effects of alcohol.

The Department of Criminal Justice awarded the $8.9 million bid for the pilot program in January. In 2009, the amount will increase to $13.3 million, according to department spokesman Jason Clark.

Inmates who successfully complete the program go before the state's parole board, which decides to grant inmates' release or send them to another facility.

"This is an experiment in the state's eyes and I've got colleagues that don't believe in this," Whitmire said. "But I really want this to work." ...

Whitmire said preliminary data shows that many of the inmates are living successful lives since completing the program.

"This is not rocket science stuff," he said. "If you provide the treatment, they are going to do very well once they leave."

AG stops TDCJ conspiracy to commit federal crime: Cell phone jammer test canceled

The Texas prison system was planning to commit a federal crime on Thursday at the Austin state jail, but Attorney General Greg Abbott intervened - not with an arrest for conspiracy but with a polite note saying, basically, "Uh ... please don't violate federal law."

Readers will recall many historical instances where this crimefighting technique was effective - that's how they got Bonnie and Clyde, after all.

In any event, while this kid-gloves approach to conspiracy to commit a federal crime may sharply contrast with tough on crime rhetoric we're used to hearing from the Texas AG, it will likely be enough to prevent the testing of cell phone jammers designed to eliminate cell phone contraband inside Texas prisons. At the request of legislative officials, TDCJ planned such a test on Thursday, but Abbott now says if the agency goes ahead they "could be exposed to legal consequences."

Still, the conspirators are pushing forward, according to the Austin Statesman ("Cell phone jamming test off," Dec. 15):

Legislative leaders who supported the test were unhappy with the cancellation.

“I think it’s a good question why they’re backing up on this,” said House Corrections Committee Chairman Jerry Madden, R-Richardson. “But if they don’t want the test on their unit, fine, we’ll find someplace else to do it. We’re in the process of punting right now —looking for some place else to do it.”

Senate Criminal Justice Chairman John Whitmire, a Houston Democrat who earlier prompted the crackdown on smuggled prison cell phones after receiving calls — and a death threat —from a death row convict, said prison officials should go ahead with the test. “This shows some very indecisive leadership at TDCJ, and it proves my point that I just don’t think they get it on this issue,” he said.

To be fair, it doesn't seem right to critique TDCJ as "ineffective" or "indecisive" for complying with the Attorney General's interpretation of whether or not the test would violate the law: We already knew it did. Besides, cell phone jammers are already used in some theaters and other private sector settings; they're fairly well known to work as advertised and I don't see why they need to be "tested."

What's needed instead is for the US Congress to change the 70+ year old statute, and that's not going to happen by this Thursday. Otherwise, testing the jammers without permission when they know it's against the law would amount to a bizarre and pointless act of civil disobedience by TDCJ; by any measure that's a rickety limb to ask a state prison system to crawl out on.

UPDATE: The FCC changed its mind and now says a test would be okay, though the AG points out they've cited no legal authority to explain the flip flop.

Most speakers at Sunset hearing oppose TYC, TJPC merger

I spent all afternoon at the Texas Youth Commission Sunset hearing mentioned here - including offering oral testimony myself - and it was hard to not leave with the impression that the proposal to merge TYC and the Juvenile Probation Commission faces a steep, uphill climb.

By my count, only one person testified in favor of the merger besides Sunset staff themselves, and many people (including quite a few chief juvenile probation officers) argued against it, suggesting the recently reorganized agency be given time to work out its kinks.

Both Sunset Commission members Ruth Jones McLendon and Juan "Chuy" Hinojosa said they opposed merging the agencies. Sunset Chairman Carl Isset also mentioned he'd received a letter from influential state Rep. David Swinford opposing the idea.

MORE: See related MSM coverage from the Dallas News and News 8 Austin.

UPDATE: A link to the Sunset hearing may be found here. Technical difficulties botched the section of the hearing covering the Commission on Jail Standards, but the portion on juvenile justice begins around 2:54 hours into the recording.

Jail Standards Commission may prioritize riskiest jails

The Sunset Commission recommended that the Texas Commission on Jail Standards evaluate county jails by risk factors and focus more regulatory attention on counties with higher risks.

I'd like to see TCJS more engaged with counties which have overcrowding problems to develop diversion strategies and solutions that reduce unnecessary incarceration. They also need more authority and staffing to monitor jail healthcare. Sunset's third recommendation seems to move in that direction, suggesting an expansion of the Commission's "technical assistance" functions for local jails.

See the Sunset staff's report (pdf) on TCJS.

Is county jail the right answer for teen suicide?

When an 18-year old girl attempts suicide, is county jail the right place to treat her?

Paul Knight at The Houston Press has an excellent story examining in detail a case where that's exactly what happened and closely tracks the young lady's struggles with depression since then and her journey through the justice system.

Sunset public hearing today: Merger won't solve all TYC's problems, may create some

Today the Sunset Advisory Commission will receive public testimony regarding several agencies including the Texas Jail Standards Commission, the Youth Commission, and the Juvenile Probation Commission, among others (see the agenda). A live broadcast of the hearing will be available online here beginning at 9 a.m.. Also, see the public comments submitted to Sunset on the topic.

Most eagerly watched will be the final agenda item where they discuss the Sunset staff's proposal to merge TYC with the Juvenile Probation Commission. Now that I've had a chance to thoroughly consider the staff report (pdf) and talk to a number of people about the plan, I've reached the conclusion that simply merging the agencies won't solve the myriad problems described by Sunset staff facing Texas youth prisons.

What's more, to the extent a merger is done with an eye toward reducing expenditures, it could actually make matters worse because most of the major problems identified by Sunset staff - inadequate mental health treatment, lack of special ed instruction, oversized facilities, etc. - require more resources, not less, to solve. Cost savings predictions also ignore the need for investment in other areas like public schools and healthcare that affect juvenile justice.

In addition, Sunset staff (who are government efficiency wonks, not juvenile justice experts) failed to advocate a shift to smaller, Missouri-style facilities or a rehabilitation model that conforms to widely acknowledged best practices aimed at reducing recidivism. The gubernatorial Blue Ribbon Panel's detailed suggestion (pdf) in 2007 for reforming TYC along these lines was sadly defenestrated by the adult-prison transplants who were running the agency at the time and was never revived.

Given my druthers, I'd prefer Sunset had revisited those Blue Ribbon Panel suggestions - they're proposing to take the agency in a different direction than the one suggested by most juvie specialists.

The Sunset report also downplayed too much (IMO) the financial impact of downsizing TYC on counties at a time when the Legislative Budget Board says youth inmate populations will be rising. There's a pilot grant program suggested to reimburse counties for costs, but it appears underfunded and speculative whereas if more TYC kids must be handled by counties, those costs will be specific and concrete.

Likely most counties would seek to identify private residential placements to manage these offenders, but the truth is there simply isn't enough private capacity out there right now to pick up the slack if LBB's inmate population projections hold. The Sunset report and the LBB projections, as far as I can tell, cannot be mutually justified - something's got to give.

See related Grits coverage:

• Sunset: TYC treatment programs failing miserably
  
• Sunset: TYC, county probation, don't gather, share enough information
• Would juvie probation be de-prioritized if merged with TYC?
  
• Will TYC-TJPC merger improve juvie corrections?
• Pondering the economics of TYC abolition
• Sunset's plan to abolish TYC
• What do you mean "abolish TYC"? A conversation with John Whitmire
• Self-paced learning at TYC the 'least effective' approach
  
• A closer look at the 'Missouri Model' for juvenile corrections
• TYC commitments to grow drastically despite declining juvie crime

SEE ALSO: The Texas Criminal Justice Coalition's written response to the Sunset Staff Report.

Prosecutor, defense counsel jobs substantially differ

Dallas Criminal Defense Lawyer Robert Guest has worked as both a prosecutor and a criminal defense attorney and says there are more dissimilarities between the jobs than you might imagine. "Does my prosecution experience help my current clients?," he writes. "Yes, but not as much as more defense work would have." See his insightful analysis of the major differences.

RELATED: Scott Greenfield at Simple Justice elaborates on Guest's epiphany. Mark Bennett adds his comments regarding Guest's post and the biases of prosecutors.

Texas Voices profiled; broad sex offender registry criticized

Doc Berman points to an article ("Texas group fights sex crime's stigma," Dec. 14) by the Houston Chronicle's Lisa Sandberg about the group Texas Voices, made up of sex offenders, their families, and others who believe that

community notification laws fail to protect the public, because they don't distinguish dangerous predators from otherwise harmless men and women who foolishly had sex with underage lovers, served their sentences and don't need a lifetime of public scrutiny. ...

Texas Voices is finding agreement in unusual places.

Ray Allen, the former Texas House Corrections chair who helped shepherd into law tough sex registration bills, said he and his colleagues went too far.

"We cast the net widely to make sure we got all the sex offenders. Now, 15 years on, it turns out that really only a small percentage of people convicted of sex offenses pose a true danger to the public," he said.

Sen. John Whitmire, D-Houston, the Senate Criminal Justice chair, said, "If we're not careful, we're going to have a sex offender registry that is so large and so encompassing, it's not much good."

Texas Voices members know their chances for success hinge on politicians risking their careers on a population with just about zero political clout.

Sen. Florence Shapiro, R-Plano, who has been a driving force behind the community notification laws, isn't ready to assume that risk. She insists that if the registry is too large, it's because there are too many people out there committing sex crimes.

Dozens of offenders, along with moms, dads and significant others, show up for the monthly Texas Voices' meetings, sharing stories and plotting strategy.

The most committed spend days and nights scrolling through the registry seeking to recruit new members. Nearly 1,000 offenders have been contacted, and about 300 have heeded the call to action, organizers say.

The article mentions that most states' sex offender registration laws begin after some heinous crime, even though they're often written to capture a wider array of offenses:

"If you look at almost all the laws out there on the books, they usually have been enacted following a horrible crime, a sexual assault and murder, which represent a tiny fraction of sex offenses," said Dr. Fred Berlin, founder of the John Hopkins Sexual Disorders Clinic.

I wish Sandberg had mentioned that the heinous crime which spawned Texas' sex offender registry actually resulted in a false conviction that was later overturned by DNA evidence. She writes, "Texas' first community notification law was passed in 1995 and named for Ashley Estell, a 7-year-old girl snatched from a North Texas playground and murdered by a sex offender parolee." But she failed to add that the man convicted of that crime - Michael Blair - was exonerated this year and did not commit the offense. As I've written previously, "to the extent [Texas' registration] laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception."

I'm in broad agreement with the group's stated agenda and agree the issue deserves this kind of focused advocacy effort. I'll look forward to seeing what Texas Voices will be working on during the 81st Texas Legislature.

Why is the solution to every social problem more cops, courts and punishments?

Our buddy Charles Kuffner has a couple of posts up at Off the Kuff that, following up on our discussion of Rep. Solomon Ortiz Jr.'s graffiti enhancement bill, made me think this morning about how Democrats (really both parties, but I'm picking on Kuff today) need to revamp their methods to stop using the justice system to address social problems.

If the only tool you own is a hammer, everything looks like a nail, the saying goes. And thus for too long a bipartisan tool shortage has encouraged reformers of all stripes, and from all points on the political spectrum, to reach first for solutions involving police, courts, fines and punishments instead of other less coercive strategies.

Kuff offers up two workaday posts on subjects that even he says should be noncontroversial - opposition to smoking and use of child booster seats in parents' cars. Neither are bad goals in and of themselves. Nearly everyone agrees smoking is bad for you, and few parents will dispute the benefit of booster seats when the case is made for them.

Yet in both instances Kuff suggests using the criminal justice system to impose by force a policy with which most could be convinced to comply on its merits if the case were forthrightly made.

Discouraging smoking and encouraging use of booster seats are meritorious things, but why are fines and criminal enforcement the only way to promote those public goods? I don't think they are. Perhaps this is a case where the road to hell is paved with good intentions?

We are living in an absurdist period of overcriminalization spurred largely by using the justice system to solve social problems that would better be resolved through provision of public services, expanded healthcare access, business regulation, public education and a variety of other means which are too often ignored. Texas has labeled 2,324 separate acts "felonies" (including eleven involving oysters), plus thousands more misdemeanors and many more local, municipal ordinances enforced with Class C fines.

That's not the only possible way to address these problems, though frequently it's the only approach the government and members of both political parties bring forward. At the Legislature, that's because new crimes and punishments are falsely claimed to have zero budget impact, while other options would require lawmakers to weigh the relative importance of social problems against each other in the budget process.

Neither of Kuff's public policy goals inherently require using criminal law enforcement. A smoking ban on restaurants, e.g., to me is an issue for a zoning commission, not the police. (I know Houston doesn't have one, but that's partially because they deal with stuff like this via the cops and homeowners associations instead of code enforcers.)

And with booster seats, why the need for a criminal law and a fine? Is there an assumption by proponents that some parents don't love their children and won't do what's best for them unless coerced through threat of punishment? Perhaps people stopped without a car seat for their five-year-old should simply be given one and sent, safer, on their way?

Chuck's motives are pure and I don't doubt the world would be a better place if more kids had booster seats and fewer people were smokers. But the means of perfecting our society cannot be only criminal punishment of those who fail to comply with what the political class thinks is best for them. That's where Kuff and I part ways on these topics.

5th Harris County DNA exoneration an indictment of eyewitness IDs

Dallas has witnessed so many DNA exonerations (more than most states) mainly because the courts kept old biological evidence from rape cases for much longer than other jurisdictions so investigators could re-examine old cases. In Houston, all that old evidence was mostly destroyed or contaminated in the state's possession, so only a relative handful of more recent cases still have biological evidence available for testing.

Still, Harris County has seen its share of DNA exonerees, including a terrible story that came out this week from the Houston Chronicle ("5 years lost in prison before DNA got tested," Dec. 12):

Five years after he was wrongfully convicted of sexually assaulting a child, Ricardo Rachell will be released from custody today.

Prosecutors and Rachell's attorney appeared before state District Judge Susan Brown this morning to request the 51-year-old Rachell's release on a personal recognizance bond after DNA tests cleared him of committing the 2002 attack.

The judge agreed and the Harris County Sheriff's Office began the process of organizing his release.

Rachell, who was brought to Houston Wednesday night from a prison in Tennessee Colony, in East Texas, did not attend the hearing, nor did any members of his family.

After the hearing, Assistant District Attorney Roe Wilson said her office will work to ensure that Rachell's conviction is overturned.

"Our goal is to make sure justice is done. And today, that means making sure Mr. Rachell is out of custody and returned to his family," Wilson said.

I'm glad to see a Harris County prosecutor express the attitude that her goal is to pursue justice and not just convictions. Not only did the state fall down on the job, Rachell's defense attorney was given a police report informing him the biological evidence existed, but he claims he never saw that information and never requested testing.

Rachell's case was yet another instance of a false conviction caused by faulty eyewitness testimony, this time from two child witnesses:

In 2003, jurors convicted Rachell, who was severely disfigured by a shotgun blast to the face years before, largely based on eyewitness testimony from the 8-year-old victim and one of his friends.

Five years later, DNA tests show that Rachell could not have committed the crime and instead point to another man who is serving time for committing similar attacks, Rachell's lawyer Deborah Summers said.

Rachell has a serious facial disfigurement that was not identified in pre-identification witness descriptions by either child and which the actual perpetrator didn't share, but bizarrely, that didn't stop police putting his photo in a lineup nor a jury from convicting him. It's hard to imagine an 8-year old would both a) be able to identify his assailant and b) not have noticed the facial disfigurement and told investigators when he made his original statement. What could police investigators have been thinking to suspect this guy in the first place?

A recent Justice Project study found that 88% of Texas law enforcement agencies have no written policies on eyewitness ID procedures and the majority of those that do don't utilize best practices (like blind administration and cautionary warnings to witnesses that the suspect may not be there). DNA evidence has provided a unique window onto the causes of false convictions, with incorrect eyewitness IDs topping the list. However, there's no biological evidence available in the vast majority of cases where eyewitness testimony is used to secure convictions. That means, inevitably, there are quite a few more folks like Mr. Rachell languishing in prison who are just as innocent but have no way to incontrovertibly prove it.

MORE: I'm reminded by this terrible episode that corroboration of victim testimony is not required in Texas to obtain sex crime convictions, and while I understand this is because such cases are otherwise difficult to make, Rachell's conviction demonstrates why that's problematic: Two boys pick a man out of a lineup despite obvious discrepancies with the original witness description. No other evidence points to his guilt, but a jury convicts an innocent man based on their testimony. We've seen this over and over.

During Texas' 80th legislative session when the House was considering creation what turned out to be an unconstutional death penalty provision for child rape, I suggested adding language requiring external corroboration for victims and eyewitnesses in cases where they did not previously know the defendant, and Rachell's case seems to me to cry out for such a reform. If two boys can misidentify someone with such an obviously different visage from the actual perpetrator (how could they not notice that?), clearly their testimony was utterly worthless on its own; they could have (and did) identify anybody the police put in front of them.

End of the Week Roundup

I thought I'd take a moment to point Grits readers to several fascinating stories I might blog about if I had more time:

• By the Numbers. Doc Berman provides links to loads of fresh data from the Bureau of Justice Statistics about prisons, probation and parole.

• Payback. In Austin, the city settled a lawsuit with the family of Daniel Rocha, an unarmed suspect who was shot to death by Austin police, for $1 million

• Closure and Transparency. At the Travis County jail, an inmate's family is trying to find out how he died in county custody, demonstrating once again why Texas' open record statutes need to be (re)strengthened for investigations that don't result in prosecution.
  

• Exonerated. Pegasus News has an interview with Dallas DNA exoneree Stephen Phillips, who was one of the men whose DNA tests were denied by former DA Bill Hill and the courts before Craig Watkins took office in 2006 and reversed the decision.

• Human Trafficking. As the Texas Legislature prepares to consider legislation to prevent "human trafficking," I was interested to see this post from the Federal Crimes Blog and also Douglas McNabb's prior coverage on the topic.

• Subways vs. Prisons? Eric Lotke from the Campaign for America's Future has a great column that opens, "China has opened a new subway system every year for the past six years. The U.S. has opened 45 new prisons and jails. Who’s setting up to lead in the 21st century?"

• The Chaplain. The Bandera County Courier has a feature on a local pastor who's been operating a jail ministry at the county jail for the last 25 years.

Explaining the decline in Harris County death sentences

A good discussion broke out over at Doc Berman's Sentencing Law & Policy blog about data from the new report by the Texas Coalition to Abolish the Death Penalty which shows the death penalty on decline in Texas, at least regarding overall totals. Most notably, Harris County sent no one to death row in 2008, though they've sent as many as 15 people per year in the past. Indeed, "While Harris County still accounts for a third of all Texas inmates awaiting execution (116 of 344), it only has sentenced seven people to death in the last four years." Why is that?

The study looked at new defendants sent to death row, not just the number of executions, so delays in cases because of the Baze lethal injection controversy don't play into the analysis.

Doc Berman said "I assume these remarkable numbers reflect the tendency of prosecutors seeking few death sentences and juries handing out fewer death sentences," and I think both those things are true. The Quintero verdict shows juries are responsible for at least part of that trend, which may also be influencing prosecutor decisions.

I suggested another reason for the decline in the comments:

there's a third cause for the declining number of Texas death sentences: New standards in the wake of the 2001 Texas Fair Defense Act to ensure capital defendants have adequate trial counsel. Better lawyers on the front end means fewer death penalty results on the backside, whereas in Harris County, in particular, the quality of counsel in such cases was historically, notoriously low before that law passed.

As evidence of this trend, more than 60 counties in West Texas recently banded together to jointly fund a capital public defender program, solving the dual problem of 1) the large cost of DP defense and 2) the lack of qualified counsel in many rural counties. So some of this may represent shifting public attitudes, but it may also demonstrate what happens when capital defendants receive effective, zealous legal representation compared to a more lackadaisical variety.

(See more about the West Texas capital public defender program - accurately dubbed "murder insurance" by proponents - in this recent Lubbock Avalanche Journal story and also this one.)

Another commenter noted, "The real reason is that Texas recently added life without the possibility of parole as a sentencing option." An anonymous lawyer suggested more reasons:

Additionally, a relatively new method of jury selection, the Colorado method, helps counsel get -- where they are adult enough to know they won't win the guilt phase -- life verdicts much, much, more often. Finally, a change in culture in the defense bar where we call a "win" in a capital case not a NG / "not guilty" but any verdict other than death encourages lawyers to seek life at all costs.

I've not heard much about institution of the "Colorado method" of jury selection as part of this debate and hope to learn more about that later.

Finally, yet another insightful commenter suggested what's likely the biggest reason for Harris County's dip in death row contributions:

For Harris County anyway, political turmoil is probably the largest reason no one was sentenced to death in 2008. Former DA Chuck Rosenthal resigned in February 2008 and an interim DA was appointed until an election could be held in November. I don't have the numbers, but I wonder how many actual death-penalty trials were held in 2008 in Harris County, rather than being delayed so that a new, elected DA could make the necessary decisions.

That's probably true. There's a good chance interim DA Ken Magdison chose to slow down these high profile cases in deference to the office's past dysfunction and its new incoming leader.

When a major change occurs in public policy outcomes - like a county sending up to 15 defendants per year to death row then none just a few years later - often there's no one reason but instead it results from the conjunction of many trends. That's what appears to have happened in Harris County, where I think all of these described trends contributed to this year's surprising goose egg for new death sentences and Texas' overall trend toward decline.

Boosting penalties wrong approach on graffiti

Given this blog's past focus municipal graffiti policies (see below), I was interested to receive a copy of a press release from Rep. Solomon Ortiz, Jr.'s office about HB 385 proposing penalty enhancements for certain graffiti crimes. From the release:

"The graffiti problem is completely out of hand in Corpus Christi ," Ortiz said. "Vandals are indiscriminately tagging homes, buildings, and fences throughout the city, without any concern for public or private property. This bill gives law enforcement the tools it needs to combat this blight on the community."

HB 385 adds a felony graffiti offense to the list of offenses eligible for prosecution under the organized crime designation, allowing prosecutors to seek higher penalties for gang-related graffiti.

"The Corpus Christi Police Department (CCPD) knows that much of the graffiti in Corpus is connected to gang rivalries," Ortiz said. "This provision will allow CCPD to go after and break up graffiti gangs."

The bill also changes the definition of graffiti to include markings made by any kind of paint, instead of just aerosol paint. In addition, it adds graffiti to the list of crimes where contraband can be seized, and expands the list of contraband items to include cameras and laptops that graffiti taggers use to publicize their crimes on the internet.

Ironically, Ortiz's approach to graffiti builds on Corpus Christi's failures at graffiti enforcement instead of capitalizing on its successes. Corpus Christi is already doing much more on the civilian side to combat graffiti than the police are doing to address it. This is a purely symbolic bill that will do little to reduce real-world graffiti, even in the smallest quantum.

Corpus has an excellent anti-graffiti program run by the city. By contrast, police there have identified dozens of individual taggers but it's both difficult and, overall, ineffective to make those cases.

That's why Corpus police want bigger penalties for the handful of taggers they occasionally do catch, but that's not an effective anti-graffiti strategy, even if it may be more emotionally satisfying for police.

Think of the cost benefit analysis: Felony graffiti is already a mandatory two-year minimum state jail felony. Enhance that upward and say an offender is given a 5 year sentence. That's about $90,000 in current dollars just for TDCJ incarceration costs (forget all the myriad collateral consequences and court expenses). By comparison, Corpus Christi spends less than $80K on a truck to go around cleaning graffiti up, a tactic which a) actually reduces graffiti (unlike incarceration) and b) is popular with homeowners and businesses who're victimized.

So to incarcerate one person under this proposal would likely cost more than doubling Corpus Christi's graffiti cleanup capacity. Can that really be a wise investment of taxpayer dollars? Corpus Christi already arrests a lot of people for graffiti, and it hasn't stopped the problem yet.

The other portion of the bill - making cameras and laptops used to publicize tags into contraband - appears to defy the notion that the legislation targets gangbangers. Instead, who you're more likely to rope in with that tactic is a serious artist with a rebellious streak who dabbles in graffiti. Some taggers have famously gone on to become world reknowned artists. Would we want to prevent, for example, the emergence of a Texas Banksy or Lee Quinnones?

Nobody would view a website of gangbangers posting their tags - trust me when I say it's a chore to draw web traffic and that type of content won't cut it. This aspect of the bill targets only artistic graffiti, not the gang stuff.

Finally, I think about the anonymous web author (including this one in particular) who may or may not be a tagger but publicizes illegal graffiti using photos and the web. Will they be subject to investigation to see WHETHER they put up any of the tags on the site just because s/he's publicizing them? Their anonymity means it's unknown whether they're responsible for any of it; would that be probable cause for a search warrant to seize a computer under HB 385? Possibly - it's opening the door to a slippery slope.

In general I'm biased against solving social problems with criminal penalties, which, is how I view this legislation. Focusing on criminal enforcement expends resources on a strategy that simply has never, anywhere on the planet, reduced graffiti from the time of the Roman Empire until today.

That said, I'm also adamantly against creating more nonviolent felony crimes, so I'll admit my position on this bill is biased by that perspective. Texas currently has labeled 2,324 separate acts felonies and for too long relied too heavily on incarceration as the sole means for addressing social problems. Particularly regarding artistic graffiti (as opposed to the gangbanger variety), I'd rather see leaders who are asking, as a Saudi prince recently asked in response to a graffiti upsurge in Jiddah:

"What have we done for young people? Have we asked them what they need or want?" said Abo-Umara, wearing a flowing white head scarf and long robe. "Until I talk to them and find out why they are scribbling all over Jiddah and do my part in offering them the services we're supposed to provide, then I can't punish or criticize them."

If I were going to write an anti-graffiti bill, my own preference would be to REDUCE felony graffiti to a Class A misdemeanor and use the savings in the fiscal note for grants to buy graffiti cleanup trucks like they have in Corpus and fund graffiti abatement programs staffed with probationers on community service. That approach would actually reduce graffiti in Texas, whereas, based on all historical examples, boosting penalties likely will not.

See related Grits posts:

• Toward a restorative graffiti policy
• Graffiti, art, vandalism and subversion
• Graffiti solutions: A cost-benefit analysis
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
• Adidas: Graffiti is legitimate art
• Grading graffiti? What do youth want?
• Graffiti on the brain and around the world
• Digital graffiti, or, Is there something to a wall that wants us to write on it?
• R.I.P. Victor Montano: Houston graffiti artist
• Can you be arrested for public knitting?
• Amarillo PD pressures businesses to file graffiti charges
• Out of our minds: Isn't felony graffiti overkill for sixth graders?
• Charging graffiti as a state jail felony?
• Reduce graffiti by pursuing the crime, not the criminal
• Graffiti in Austin up 400% since 2002
• Austin lags on important third component of graffiti policy

Contraband prosecutions

After all the hubbub about contraband smuggling in state prisons, it's ironic that the only recent example we've seen of indictments against prison staff for contraband comes from a privately run federal facility. AP reports that:

A former correctional officer at the Ector County Correctional Center faces a federal bribery charge for allegedly supplying an inmate with three bags of marijuana and a cell phone in exchange for about $450, the U.S. Department of Justice said Wednesday.

Andrew Allen Zehr, 23, faces up to 15 years in federal prison and a maximum $250,000 fine if convicted of the offense alleged to have taken place in late October. ...

Zehr was employed by New Jersey-based CiviGenics, otherwise known as Community Education Centers. The company is contracted by the county to manage the federal holding facility inside the Ector County Courthouse, the Odessa American reported Tuesday for its online edition.

The Texas Senate Criminal Justice Committee was told in November that TDCJ has caught 46 guards smuggling cell phones into prisons since a system-wide lockdown was implemented this fall, but we've heard nothing yet about prosecutions in any of those state cases.

Will Lege revisit Family Code after the Great Eldorado Polygamist Roundup?

This post from Kurt Schulzke over at Contraries (formerly I Perceive) questions whether the Texas Family Code may allow authorities to too easily remove children without cause, as happened in the Great Eldorado Polygamist Roundup.

The fact that appellate courts threw out most of those cases might lead one to think the law was fairly plain, but instead it was state agency actors and local jurists who engaged in such sweeping overreach. Maybe so. But there were many problematic aspects to that absurdist incident and the courts only ruled against CPS on one of them. It's still troublesome that CPS would even think they could take so many kids without the slenderest reed of specific evidence about their families, all based on what turned out to be a hoax phone call.

Part of me would like to suggest that the Family Code deserves revision in light of the Great Eldorado Polygamist Roundup, but the politics surrounding that case were a complete zoo and in truth, I have no idea how the Texas Legislature would deal with that case if asked to consider what happened. State Rep. Harvey Hildebran was a key instigator in pushing state action against the West Texas polygamists, and it wouldn't surprise me (though it would disappoint me) if the Lege endorsed a bill that made it easier to engage in religious-based persecution of families.

For that reason, maybe it's better to let sleeping dogs lie - to be thankful the appellate courts rose above gross politicization in this case and avoid seeking any legislative remedies.

RELATED: See this news story about use of the same tactics deployed against FLDS being used against non-polygamous citizens in an abusive fashion.

US Attorney pitches reentry programs for gangs on his way out

Bob Ray Sanders recently interviewed Richard Roper, the outgoing US Attorney for Texas' Northern federal judicial district, who surprised the Startlegram columnist by pitching:

a gang prevention and intervention program that he hopes doesn’t disappear once he is gone.

It is true that Republicans have a reputation, true or not, of focusing only on enforcement and rarely championing the idea of putting money and other resources into prevention. Even many police officers consider such programs "social work" that they simply don’t want to do.

Roper, pointing to studies in front of him conducted by the University of Texas at Arlington, noted he was quite proud of the Dallas/Fort Worth Anti-Gang Initiative for which he received a $2.5 million grant targeted to areas where the crime activity was the worst.

The program has a three-pronged approach — enforcement, prevention and re-entry — and in every area the numbers are impressive.

Comparing the last six months’ data (January to June 2008) with the first six-month period, gang-related arrests increased 82 percent, while certain gang related activities showed dramatic decreases: 29 percent decrease in aggravated assaults; 57 percent drop in robberies and 55 percent decline in aggravated assaults with a firearm. ...

The statistics on the prevention and re-entry modules are even more compelling to me. For example, the total number of youths participating in the prevention program was 2,467, with 69 percent of them completing it. Of that group, the number of youth who have offended or re-offended is zero, according to the study.

The study also shows a marked increase in school attendance and improved family relations for these young people.

"The recidivism rate drops tremendously when there is a re-entry program that includes training, mentoring and job placement," Roper said.