Chatman prosecutor: 'Let's get this system fixed'

James Fry, a former Dallas ADA and protoge' of District Attorney Henry Wade who prosecuted recent DNA-exoneree Charles Chatman's case nearly 30 years ago, reflects on his role in the false conviction and the implications of recent DNA exonerations for the justice system in an excellent Dallas Morning News op ed titled, "I put away an innocent man," which concludes:

Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?

For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?

For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.

I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.

But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.

Revenge of McLovin: Bills good and bad try to sneak in under deadline

Taps played in the Texas House last night as the clock struck midnight, signaling the death of several thousand bills filed in the lower chamber that didn't make it out by the deadline, at least for this session. (Now, of course, begins the biennial sport of tacking on dead bills to still-moving legislation.)

Looking at the bills that did make it through on the final day, these criminal justice highlights stand out:

Innocence Investigated
HB 498 (McLendon) - Creating an Innocence Commission to investigate false convictions and identify reforms to prevent their recurrence. (See prior Grits coverage.) This bill in 2007 passed the Senate but died in the House, so its prospects look fairly bright headed into the eastern wing of the capitol, where most senators have already voted for it. Earlier in the day, the House concurred with Senate amendments on HB 1736, approving increased compensation for exonerated inmates.

Rethinking the 'Law of Parties'
HB 2267 (Hodge) - Would require severing trials in capital cases involving the law of parties and make the maximum penalty for nonkiller accomplices in capital cases life without parole. (See prior Grits coverage.)

Investing in Human Capital at TDCJ
HB 518 (Kolkhorst) - Would create a student loan repayment program at Sam Houston State for graduates who go to work at the Texas Department of Criminal Justice. Not as good as a pay hike, but as my father likes to say, it's better than a sharp stick in the eye.

As always, there were also a few penalty "enhancements" thrown into the mix:

Cinderella's Last Dance
The last House bill approved by the lower chamber before Cinderella's carriage turned into a pumpkin was HB 1396 by Farrar, increasing penalties for "burglary of a vehicle" to a state jail felony on the second offense. This is an attempt by the House to go back on a deal with the Senate from 2005 that resulted in the current statutory construction (SJF on a third offense with a mandatory incarceration stint in the county jail on a second offense).

If there's one thing I've noticed about such deals at the capitol, it's that deals that satisfy pro-incarceration interests are considered sacrosanct while every deal to limit incarceration is always open to renegotiaton. When discussing state jail felony statutes at the Lege, you'll often hear someone tell you, "Oh, we can't do that, it would go back on the deal we made with prosecutors in 1993." Forget that most of the elected DAs from 1993 are gone now or that deals like this one on burglary of a vehicle can be reneged on two sessions down the line.

As usual, the Legislative Budget Board claims the 24 new prisoners per year and a couple hundred additional probationers will all be free to house and manage, a legislative fiction that allows the bill to pass with no "fiscal note."

Revenge of McLovin
The other remarkable enhancement bill from last night was HB 2411 by Fletcher, which failed on a 90-39 record vote after the chair had already announced its voice-vote approval. The bill would have made it a third degree felony to attempt to use phony documents to get a drivers license, though humorously the bill as it came out of committee would have (erroneously) removed all penalties for that offense. It also made it a third-degree felony to lend your own drivers license or make it available for someone else's use.

Rep. Jim Dunnam came to the back mike to question Fletcher, telling him that his "primary constitutent," his son, it turns out, had called him to say he wanted to keep the language that made it legal to seek an ID under a false name. The reason, he said, was that his teenager wanted to get an ID with the name "McLovin" on it, and this bill as written would allow him to do that. :)

Dunnam was also concerned, he said, about the penalty for making your drivers license available to someone else. He said he was hoping Dan Branch or some other GOP legislator would invite him to visit a country club one day, and he understood you have to give your ID to get a towel, without which he couldn't go to the pool. "My hair doesn't look very good air dried," the Democratic Caucus leader deadpanned. Another rep chimed in that the idea of Rep. Dunnam without a towel brought up "a visual" that disturbed him and suggested a "bracket" for the Waco legislator.

All fun aside, nobody was laughing when, after initially the bill appeared to pass on a voice vote, a record vote was granted and 90 members voted against the legislation. (Okay, maybe there was a small, wry grin on Warren Chisum's face; he seemed to be enjoying the exchange.) Eight others joined the majority in a motion to reconsider and table the bill for good, permanently killing it for the session. (Watch the video here beginning around the 8-hour, 47-minute mark.)

Houston's white-collar crime beat

Tom Kirkendall at Houston's Clear Thinkers has been a go-to source lately on white-collar crime coverage outta H-Town.

Discussing a Fifth Circuit opinion in Enron CEO Jeffrey Skilling's case, Big Tom notes that, "Inasmuch as there is now a clear split between Fifth Circuit decisions and other circuit appellate courts on the scope of honest services wire-fraud, the issue appears ripe for Supreme Court consideration. Indeed, Skilling's petition notes Supreme Court Justice Scalia's recent observation about the need for the high court to take up the issue."

He also describes alleged prosecutorial misconduct in the Skilling case that brings to mind the Ted Stevens prosecutors withholding evidence. Tom writes:

After Skilling's conviction, the Skilling defense team discovered Fastow interview notes that the Enron Task Force had failed to disclose to the Skilling team prior to trial. Among other things, those notes revealed that Fastow had told the Task Force lawyers that he didn't think he had told Skilling about the Global Galactic agreement. The Fifth Circuit characterized the Task Force's non-disclosure as "troubling" in inviting Skilling to file a motion for new trial with the District Court.

HCT also discusses how Sir Allen Stanford's alleged role as a drug informer may have influenced prosecutorial decisions in that case.

Finally, I can only shake my head and wonder with Tom over Galveston federal district Judge Sam Kent's fall from grace, "How did it come to this?"

Op eds support eyewitness ID bill

The Austin Statesman has an editorial today about the Austin PD's adoption of best practices for photo lineups conducted by police, encouraging the Legislature to pass SB 117 (currently in House Calendars) requiring all law enforcement agencies using them to develop written policies:

Both kinds of lineups, photo and live, lend themselves to abuse because relatively few police departments have written, updated policies about how they should be done. Often such procedures are passed along orally from one investigator to another. Bad habits are passed along with good ones. This is an antiquated, unprofessional way to do business.

Some best practices that have emerged include making sure lineups feature people with similar appearances and that the investigators conducting the lineups are unaware of a suspect's identity. The latter is important to prevent investigators from deliberately or unintentionally aiding a witness. The Legislature is poised to spread those procedures statewide with Senate Bill 117, requiring Texas police departments to develop best practices crafted by Sam Houston State University's Law Enforcement Management Institute.

It is a tragedy that Cole, a Texas Tech University student with a bright future, died in prison in 1999 while serving a 25-year sentence for a crime he did not commit. The most compelling evidence against Cole was the mistaken eyewitness identification from the rigged photo lineup.

With better, written procedures, police can decrease or prevent mistakes and errors in photo and live lineups that send innocent people to jail and permit the guilty to escape accountability.

In a similar vein, at the Fort Worth Star Telegram Bob Ray Sanders hopes the House won't spend so much time debating Voter ID that it fails"to pass, without too much tampering, other bills proposed by the Innocence Project of Texas, including one to improve eyewitness procedures as they relate to unreliable photo line-ups. The real 'ID' issue lawmakers should be dealing with is the one in criminal cases," he said.

RELATED: The House just concurred with Senate amendments this morning on HB 1736 by Anchia/Duncan which expands compensation for exonerated inmates. The bill now goes to the Governor. MORE on the compensation bill from the Dallas News editorial page.

Indigency program for 'driver responsibility' fees?

The Texas House yesterday approved Sunset legislation for the Department of Public Safety, and it looks like Sylvester Turner added a couple of good amendments regarding the Orwellian-named "Driver Responsibility" surcharge, which adds a large, multi-year administrative fee on top of criminal penalties for DWI and no-insurance cases. The first one required DPS to make rules establishing an "indigency" program for the surcharge, and the second one required notice and mandated a 75% reduction if they're deemed "indigent" by DPS rule. Much needed.

I'm sure there's technically a budgetary cost to the amendment, but with a 70% non-payment rate on the fee - a situation that's resulted in a staggering 10+% of Texas drivers scooting around the roads with outstanding arrest warrants - the money the state forgoes wasn't really coming in anyway.

Perkins' parole nomination scuttled!

What a shocking outcome: On Sen. Whitmire's motion, with Sen. John Carona's vocal, bipartisan support, the Senate rejected Shanda Perkins' nomination to the parole board on a 27-4 vote, calling her unqualified. Whitmire said he respected Perkins but she should not be on the parole board, which literally considers matters of life and death. Texas has increased pay for the full-time slot, he said, to $95,000 per year to attract the most qualified candidates possible and she didn't fit the bill. He suggested the Governor appoint Perkins to a different slot, possibly a university regent. Watch the debate here beginning at the 2:42:30 mark; here's initial AP coverage.

Senators Whitmire, Carona, and Shapleigh deserve huge credit for speaking out to oppose this nomination. I've never seen a vote quite like that!

MORE: From the Austin Statesman, where Mike Ward reports that "The four votes to confirm the nomination were Sens. Craig Estes, R-Wichita Falls; Troy Fraser, R-Horseshoe Bay; Mike Jackson, R-La Porte, chairman of the Nominations Committee, and Jane Nelson, R-Flower Mound." Several senators who voted for Perkins in the Nominations Committee actually changed their votes. AND MORE: The Fort Worth Star-Telegram says, "It was the first time in decades that a gubernatorial appointee has been rejected on the Senate floor."

Education a solution to crimes from murder to graffiti

After many years of criminal penalty hikes and prison building, I've wondered if we may have reached the limits of crime reduction based on incarceration and if other investments in healthcare (particularly mental health) and education might not do more to reduce crime.

So via USA Today, I was interested to see a new website called the Common Good Forecaster (from the United Way and the American Human Development Project) which makes concrete that connection, estimating improvements in various social indicators thanks to more people getting an education.

Noting that more than one in 5 Texans age 25 and over didn't graduate high school, the site focuses on murder rates as its key crime indicator; Texas' rate is 6.6 per 100,000, compared to 5.9 nationally. By their data, if Texas were to increase the number of people who graduate college from 25-32%, it would reduce Texas' murder rate to the national average (and boost median personal earnings by 5%).

But murder may not be the only area where improved education might reduce crime. Another USA Today piece from yesterday says much of the nation finds itself in the grip of increased graffiti crime, though some cities like New York and Dallas are bucking the trend. Texas and other states have responded largely by increasing penalties for graffiti, but I've argued before that erasing a deficit in fine arts education might be a better approach:

While these bills flail with a hammer at the problem (at this point punching holes in the wall instead of pounding a nail), we see a telling item over at the Houston Chronicle's Texas Politics blog which informs us that "Music, fine arts are seeking more respect" at the Legislature, noting that Texas schools have seen the arts de-prioritized to focus on the TAKS test. As a result, Texas experienced "a drop in middle school fine arts participation from 75 percent student participation in 1999 to 66 percent in 2006."

Perhaps relatedly, during this same period in Texas graffiti crimes soared; the amount of graffiti in Austin, for example, increased 400% from 2002 to 2007. So kids are doing less art in school and more out in the streets. But all legislators can think to do is increase punishments, not artistic opportunities.

In that light, I was pleased to see Sen. Florence Shapiro amend her big public schools bill, HB 3, to require fine arts and physical education credits in the state's minimum graduation requirements. To my mind, boosting fine arts in schools may do more to reduce graffiti by youth than any other public policy we could undertake because it provides an artistic alternative. I don't believe the fact that Texas youth are doing less art in school and more in the streets is a coincidence.

Sen. Shapiro, though, didn't mention graffiti but said what convinced her to add the amendment (which she'd rejected when it was offered previously by Sen. Leticia Van de Putte) was a new study from the Texas Cultural Trust released May 1st about the impact of the creative sector on the economy. Said the press release:

An economic study released today shows that the creative sector of the Texas economy is growing faster and paying higher wages than jobs in the non-creative sector. According to the data, creative sector industries such as digital media, film, music, performing arts, visual arts and arts-related tourism have become a cornerstone of the state’s economy and are on a trajectory for continued growth. ...

The data demonstrates a clear link between the cultural arts, a vibrant creative sector and a strong economy. But the study’s findings also imply that the bright spot in Texas won’t last forever if the state stops investing in arts education and the cultural arts.

According to the report, said Shapiro, by 2016 one in 12 Texas jobs will be in the creative sector.

I suspect that promoting arts in school will have at least as great an effect on graffiti - if not more so - than has boosting criminal penalties, which seems to have been an ineffective approach.

Florida can't pay for new penalties, prisons

More states are rethinking their incarceration policies because of the current economic downturn. Most recently Florida, according to the Orlando Sentinel, has run up against the limits of their ability to pay for state prisons.

With the state short on cash and prison beds, Republicans in the Florida Legislature are being forced to reassess the tough-on-crime mentality that has permeated their politics for years.

Florida's prison population cracked 100,000 this year, and state prison officials expect to need more and more prison beds during the next five years as the number of people incarcerated swells past 120,000. ...

"Our prisons are growing faster than anything else in our state," said Senate criminal-justice budget chief Victor Crist, a Tampa Republican.

Texas would be in the same boat if we hadn't begun reforming the probation system in 2007, and more work is needed to keep the prison system afloat beyond the short-term.

Florida is spending new money for drug courts and diversion programs while putting off opening new prison beds because they can't pay for staffing:

This year's money crunch also prompted lawmakers to abandon plans to bond out $300million in new prison construction in future years.

Rather, to address its prison-population growth, lawmakers ended years of resistance and included plans in the state's $66.5billion budget passed Friday to beef up drug courts across the state. These courts are designed to find programs for drug users instead of dumping them into the state prison system.

Though in many ways Texas is ahead of the Sunshine State on prison diversion, the Sentinel reports that Florida's budget crunch has caused legislators to take a step that our legislators haven't been able to muster: They've actually ceased passing new criminal penalties because they can't afford new prison beds.

Lawmakers also directed circuit judges to keep more nonviolent offenders who commit lower-level crimes out of prisons. ...

Lawmakers shied from the normal bills stiffening sentences for sexual predators, drug crimes and other offenses.

Another bill to crack down on smuggling illegal immigrants into the country passed only after the penalty was watered down from prison time to a fine.

By contrast, Texas keeps passing bills with increased criminal penalties, seemingly oblivious to the long-term financial costs. For some reason, the cognitive dissonance of passing prison diversion bills at the same time they're boosting penalties doesn't seem to phase our legislators.

Heading into the home stretch

A key deadline passed last night at the Texas Lege; as of today, bills filed in the House which have not been scheduled for a floor vote (and do not have a Senate companion) cannot pass, barring their resurrection as amendments to other legislation. By rule, all bills originating in the House must be passed from that chamber by midnight Thursday, at which point the home stretch of the session begins in earnest.

Only 51 bills out of more than 7,000 have been finally passed and sent to the Governor. Most of these bills are dead, though with a few exceptions, for the most part that's probably a good thing.

The pace this session has been achingly slow, and last night was stalled further by a legislator's health crisis when Edmund Kuempel of Seguin was found unconscious, not breathing and with no pulse in a capitol elevator. He was revived by fellow legislator Dr. John Zerwas and is reportedly in a "stable, guarded condition" at a local hospital. (UPDATE: He is reportedly in a medically induced coma.) Kuempel is an affable, good humored fellow to whom I wish a full and speedy recovery.

Parole board vacancy: Insert dildo joke here

(UPDATED) The full Texas Senate today will consider the nomination of Shanda Perkins, the anti-sex toy crusader from Burleson who Governor Perry has nominated to serve on the parole board despite having no apparent experience regarding criminal justice besides the effort to ban dildos from Johnson County. (I know, I know, it can't be done - they're indigenous.) The Fifth Circuit Court of Appeals later overturned Texas' statutory sex toy ban.

Hard to know what to say about this that's not been said before, so see prior, related Grits posts:

• More disapprobation for Shanda Perkins nomination
• Senate should reject sex toy activist for parole board
  
• Nomination of anti-sex toy activist to parole board draws more criticism
• Governor appoints anti-sex toy crusader to parole board

Perkins says her role in the sex-toy prosecution was overblown and she only passed around copies of the law she thought should be enforced and tried to pass a resolution to ban short skirts worn by her nemesis, the dildo saleswoman, to local Chamber of Commerce events. (A commenter on another blog noted that we've heard this song before.)

Normally sex toys don't come up much in the nominations process so at least her appointment has provided some comic relief, but for those whose lives will be affected by Perkins' decisions, it's no laughing matter. There's a time and a place for everything, including dildo jokes, but you'd think an appointment to the parole board wouldn't be one of them.

UPDATE: Who'da thought? Mike Ward at the Austin Statesman says her nomination appears to be in trouble:

“She appears to be toast. Burned toast,” said one senator.

By several reports, the Senate’s 12 Democrats are lined up to not confirm Perkins’ nomination and two Republicans said privately the are among several GOPers who also oppose it.

MORE: I'd have never anticipated this:

The Texas Senate has blocked 1 of Gov. Rick Perry's nominees to serve on the state board of pardons and parole over concerns she is unqualified for the job.

The 27-4 vote Wednesday to send the nomination of Shanda Perkins of Burleson back to committee was a resounding bipartisan rejection of the former banker.

Open meetings laws a First Amendment violation?

Here's an unfortunate and potentially devastating new ruling by a 3-judge panel of the 5th Circuit Court of Appeals that deserves to be overturned en banc, via the Chicago Tribune:

Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws.

A ruling last month by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit that city council members in Alpine, Texas, filed against the local district attorney and state attorney general after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails. ...

Texas Attorney General Greg Abbott's office says the 5th Circuit's ruling could serve as a precedent for striking down any open meetings law that doesn't pass that test.

"Until the panel's ruling," Abbott's office wrote, "no court had ever held that any of these statutes is a content-based restriction on speech subject to strict-scrutiny review under the First Amendment, nor have these statutes been struck down -- in whole or in part -- for violating the Amendment's free speech protections."

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."

Reliance on fees left drug courts underfunded

According to the Killeen Daily Herald ("Bell County making progress on drug court," May 12), the Lege did not provide enough funding for drug courts mandated by the 80th Texas Legislature in 2007, putting some counties in the position of possibly losing state probation funds:

A mandate came out of the last legislative session, requiring counties with a population of more than 200,000 to create a drug court.

Bell County received $100,000 for the program, but [County Judge Jon] Burrows said this will not cover all the expenses incurred, for which they originally requested $240,000.

The county applied for $261,000 in state grants for the next fiscal year.

If the county does not implement a drug court, the state would withdraw funding from adult probation programs.

Burrows said the risk of not having state funds for those services is enough incentive to implement the drug court, even though he and other officials said a drug court was not needed in Bell County.

"Our judges were already doing the same thing a drug court would do," Burrows said in an interview last month. "This is another unfunded mandate on us for a program we didn't ask for, and our judges said we don't need."

Burrows said he contacted the governor's office on criminal justice, which told him the funding mechanism in the statute failed to generate enough funds for all Texas counties.

Todd Jermstad, interim director for Bell County's judicial district Community Supervision and Corrections Department, created Bell County's drug court plan with Judge Rick Morris of the 169th District Court.

"There are still grants that can be disbursed, that free up funding for this year through August," Jermstad said. "The biggest need is for outpatient treatment, but the state did not provide enough money for that."

Drug court will begin as soon as the county receives grants for it.

To me, this shows why it can be problematic to rely on probationers' fees to pay for criminal justice programming when they're already overloaded and too high. Paying for outpatient treatment is much cheaper than sending more folks to prison (which is paid for out of state general revenue), so in that sense it's penny wise but pound foolish to not do a drug court because probationers' fees won't cover it.

We'll see what the conference committee on the budget comes up with, but I'm somewhat concerned that the 81st Legislature hasn't included enough resources to make up this shortfall and pay for necessary treatment programs. That leaves new Texas stimulus funds for law-enforcement grants as the main available source for making up that amount. That money will be distributed entirely at the Governor's discretion.

Reader poll: Most think Keller gone by year's end

Taken collectively, IMO Grits readers pretty accurately assessed in a poll last week the relative likelihood that Court of Criminal Appeals Presiding Judge Sharon Keller will be removed from the bench for official misconduct by the end of the year.

Somewhat surprisingly, two-thirds of readers think Keller will no longer be a judge by year's end, though a plurality (34%) think nothing will happen to her. I agree that if a bettor were laying money on the subject, that outcome enjoys the best odds. Slightly fewer (28%) think she'll be removed by the Commission on Judicial Conduct. Nearly as many (26%) think Judge Keller will resign (though I suspect she's got too much chutzpah for that). Just 11% believe the House of Representatives will impeach her.

That sounds like about the right order if we're ranking the possibilities. Most likely: She gets away scot-free. The best chance for Keller's ouster is likely the Commission on Judicial Conduct (which has already instigated removal proceedings) or her own resignation, with impeachment remaining an outside shot.

'Worst of the worst'? House will consider 'law of parties' in capital cases

Should the death penalty be applied only to the worst of the worst, or also to those who associate with them?

That's a question the Texas House will answer today when they take up and consider legislation to eliminate the death penalty for accomplices who didn't kill anyone based on the "law of parties." The issue rose in prominence last year when Governor Rick Perry commuted Kenneth Foster's death sentence under the law of parties and called on the Legislature to reconsider the issue of whether accomplices in capital murder cases should receive separate trials.

The bill up today would require an accomplice in a capital murder case to stand trial separately from the actual killer and eliminate the death penalty for people who didn't personally murder anyone. As Scott Cobb described HB 2267 by Hodge on Burnt Orange Report:

HB 2267 would require separate trials for co-defendants in capital trials in which the death penalty is sought and would prohibit the state from seeking the death penalty for people who do not kill anyone but are convicted under the Law of Parties. It is fundamentally unfair to sentence someone to death, like Kenneth Foster was, if they did not kill anyone. The death penalty is intended to be reserved for the worst of the worst killers. People who do not themselves kill anyone are not only not the worst of the worst, they are not even killers.
The Law of Parties allows people who "should have anticipated" a murder to receive the death penalty for the actions of another person who killed someone. A person sentenced to death under the Law of Parties has not killed anyone. They are accomplices or co-conspirators of one felony, such as robbery, during which another person killed someone. However, in some cases a person can end up on death row under the law of parties even though they did not even know their co-defendant had any intention to hurt or even rob the victim, which is what happened to Kenneth Foster. A person who did not kill anyone, or intend anyone to be killed, should not be executed for the actions of another person.

Non-killers convicted of capital murder under the law of parties could still receive life without parole, as I read the bill, but the death penalty would be off the table. See a good discussion of the legislation and its pros an cons from the House Research Organization.
Relatedly, see also an open letter I wrote last year to the Governor and the parole board regarding Kenneth Foster and the law of parties, which declared in part that, "Increasingly I've come to believe that, if the death penalty is ever abolished, at least in this state, it will not be because its opponents succeed politically but as a backlash to its overzealous implementation." In that sense, arguably, this legislation does more to preserve the death penalty than to limit it. I hope they approve it.

House would put stop to red-light cameras

Here's some surprising but welcome news: The Texas House on Friday amended its big transportation sunset bill to ban new contracts for red light cameras and to require cities to phase them out as current contracts expire. According to the Amarillo-Globe News ("Red light cameras dealt blow," May 9):

[Bill sponsor Rep. Carl] Isett has long opposed the use of the cameras at busy intersections - including at five in Amarillo - on grounds that they are money-making operations for local governments (the average fine is $75) and unconstitutional because the program doesn't allow motorists to fight charges that they ran a red light.

Isett has pushed this legislation for several years but usually has been met with opposition from lawmakers representing large metropolitan areas such as Dallas, Houston and San Antonio, which are municipalities that use the cameras. Dallas recently reported that it made more than $3 million ticketing motorists who the automated devices caught running red lights.

But this time that bloc of big-city lawmakers didn't hold the influence it once did on the issue.

The authors were pleased.

"Let's be honest with the public," Elkins said. "This is all about generating revenue for the cities, not about public safety."

In Houston, for example, at intersections using red-light cameras, accidents, mainly rear-end collisions, increased by 118 percent, Elkins said.

If the Senate approves the Elkins-Ortiz amendment in Isett's transportation bill - the TxDOT reorganization is a legislative priority this session - the phasing out of red-light cameras would be gradual, Elkins explained.

For starters, TxDOT, not local governments, would have jurisdiction over the devices. In addition, starting June 1, no more red-light camera contracts would be approved in the state, and existing contracts would not be renewed.

Carl Isett and Gary Elkins deserve huge kudos for their stalwart opposition to the cameras over the years on personal liberty grounds, and I'm glad to see them working across party lines with Ortiz and others to get rid of them. The amendment passed on a 107-36 vote.

In addition, they've crafted a particularly clever approach in case the Senate refuses to keep the amendment on. According to KBTX out of Bryan:

The Senate still has to look at the issues. The authors of the bill apparently have a back up plan if the Senate doesn't see Red like the House did.

Ortiz and Elkins have added this line to their amendment: "[TxDOT] by rule shall require that the change interval in a light equipped with a photographic traffic signal enforcement system must be at least one second longer than the minimum change interval established in accordance with the Texas Manual on Uniform Traffic Control
Devices."

Ohio and Georgia have enacted longer yellow requirements to great effect. In Georgia, seven cities known to have lengthened yellows since January have seen violations decrease by 70 to 80 percent. A Texas Transportation Institute (TTI) study documented a 40 percent decrease in collisions after testing the benefits of increasing the yellow warning given to motorists before an intersection signal changes from green to red.

Requiring cities to lengthen yellow light lengths will reduce revenue dramatically for red light camera schemes and likely cause cities to eliminate them on their own. Everyone says they're about safety, but those data are inconclusive while what cities seem most excited about everywhere they're implemented is revenue from tickets. When that declines 40-80%, the cameras won't look nearly so appealing.

RELATED: Paul Burka dislikes a lot of the other stuff that made it into the DoT Sunset bill.

Exoneree compensation bill passes Texas Senate

The Texas Senate today passed the Tim cole Act to improve compensation for false convictions and create a mechanism for posthumous exonerations. Here's a press release received via email from the Senate bill sponsors, Robert Duncan and Rodney Ellis:

Senate Passes Tim Cole Act to Improve Compensation for Wrongfully Convicted and Their Families
HB 1736 ensures justice for those posthumously exonerated

(Austin , Texas ) The Texas Senate today passed HB 1736, the Tim Cole Act, legislation to improve compensation for the wrongfully convicted and ensure justice for wrongfully convicted Texans who have died in prison.

The legislation, by Senators Robert Duncan (R-Lubbock) and Rodney Ellis (D-Houston), provides compensation for family members of wrongfully convicted Texans who have been posthumously exonerated, and increases compensation levels for other exonerees.

"The Tim Cole case should serve as a wake-up call to Texas ," said Senator Ellis. "It is time to get our house in order and enact reforms that, wherever possible, can help avert miscarriages of justice before they happen."

"It is a tragedy that brought House Bill 1736 to the Senate floor today, but the grace and dignity that Mr. Cole's family demonstrated while leading this important cause would surely make him proud," said Senator Duncan. "As a result of their efforts, Tim Cole's untimely death was not in vain. Criminal justice in Texas will be more fair and compensation for those wrongly convicted will be more adequate because the Legislature responded to Mr. Cole's terrible and sad struggle."

HB 1736 would:

• Increase the lump sum compensation for all exonerees from $50,000 to $80,000 per year of incarceration, including time spent in city or county jail. Current compensation only applies to time in a TDCJ cell, but not another kind of cell.

• Allows the lump sum compensation to pass to the family in the event the innocent person dies before release, as Timothy Cole did.

• Allows lump sum compensation of $25,000 per year spent on parole or registered as a sex offender.

• Creates lifetime annuity payments to the exoneree based on a present value of the lump sum compensation, annuitized using a 5% interest rate and payable in equal monthly installments using actuarial factors.

• Provides up to 120 hours of free tuition if the claimant desires to attend a state college.

• As under current law, a person who receives a subsequent felony conviction loses their eligibility for compensation. Any annuity payments would cease.

• Any person who accepts state compensation must give up any civil suit against the state, municipalities or other parties.

Tim Cole was a veteran, loving son, and student at Texas Tech University when he was wrongfully convicted of rape in 1985. He maintained his innocence until he died in prison of an asthma attack in 1999. The real rapist, Jerry Johnson, attempted to confess as early as 1995 and was finally successful at getting the attention of authorities in 2007 after he sent a letter to Tim Cole's mother. In 2008, DNA testing exonerated Tim Cole and implicated Mr. Johnson.

On February 4, 2009, the House of Representatives and the Senate passed resolutions honoring Tim Cole. On February 6, Cole was officially exonerated when Travis County District Judge Charlie Baird announced "to a 100 percent moral, factual and legal certainty" that Timothy Cole did not commit the crime which sent him to prison.

"I offer my sincere condolences and deepest sympathies to Tim Cole's family for the 13 long years he was forced to suffer in prison for a crime DNA proved he did not commit, and for the decade plus they fought to clear his name,' said Senator Ellis. "I hope that this legislation will help them finally find the peace they have so difficultly earned."

Now HB 1736 goes back to the House which is expected to concur with Senate amendments, then the bill heads to the Governor's desk. Congrats to the Cole family and Texas exonerees - IMO this is a landmark achievement.

MORE: From the Lubbock Avalanche Journal, the Dallas News, and the Austin Statesman.

Tanking economy prompts rethinking incarceration

As states struggle with paying for expanding prison populations in a tanking economy, Texas' 2007 diversion reforms were cited as a model in a New York Times editorial today titled "Shrinking the Prison Population":

New prison sentencing and re-entry policies are already taking hold in several states, thanks in part to work by the Council of State Governments’ prison policy arm, the Justice Center, with the support of the Pew Charitable Trust’s Center on the States.

Their results have been especially impressive in Texas and Kansas, law-and-order states that were facing huge increases in their prison populations before they turned to the Justice Center for analyses and policy suggestions. Last month, representatives from both states testified about their experience before a House appropriations subcommittee.

State officials said that after studying the problem they found their prison populations were being driven up, not by crime, but mainly by breakdowns in their parole and probation systems.

Simply put, they were sending too many people back to jail. Many were drug-addicted or mentally ill offenders who could be safely dealt with in community programs.

Legislatures in both states decided to expand community-based drug treatment and mental health services, and encouraged localities to provide closer supervision for released inmates. The changes, put in place two years ago, have yielded especially strong results in Texas. State officials said that the new system had already reduced parole revocations by an astonishing 25 percent and helped the state avoid a projected increase in the prison population that would have cost the Texas treasury hundreds of millions of dollars.

Of course, Texas still can't afford to pay for the prison system we've got, but without the initiative described in the op ed, the problem would by now have reached crisis levels. See this analysis from the Justice Reinvestment Project on the impact of Texas' 2007 reforms (pdf).

Relatedly, in Ohio they're debating whether to reduce the prison population abruptly by more than 10% because they can't afford to pay for incarceration. Doc Berman points to news from the Buckeye state that:

With a near-record 50,919 inmates behind bars as of May 4, Gov. Ted Strickland said he has no choice but to start releasing people because the state can't afford it. His proposal isn't just a scare tactic.

Ohio lawmakers are considering sweeping prison reform in which prisoners will be sent to live in halfway houses in communities -- or be paroled to a house down the block. Many more will never set foot in a prison under a proposal to amend sentencing laws so some crimes are no longer considered serious enough to warrant prison.

Strickland predicts his proposed changes could reduce the prison population by 6,736 indefinitely and save state taxpayers almost $28 million per year.

Mass incarceration is a rich country's game, with the United States accounting for 5% of the planet's population but 25% of its prisoners. Forcing states to rethink draconian incarceration policies could turn out to be a silver lining amongst the economic storm clouds. I predict that over the next few years, with the economy feeling the pinch, more states will be forced to get serious about reducing prison populations, which were already too large and expensive before the economy dipped.

Allen Stanford: DEA snitch?

Did the US government tolerate fraud, money laundering and white-collar crime by Houston billionaire Allen Stanford because he was a snitch for the DEA? Reports the Press Association today:

Stanford guaranteed himself against fraud investigations by working with the US DEA, turning over details of money-laundering from Latin American clients from Colombia, Mexico and Venezuela and Ecuador, the corporation claims.

"We were convinced that Stanford's bank attracted millions of narco-dollars, but it was very difficult to get the evidence to nail him," sources apparently told Panorama.

"The word is that Stanford has been a confidential informer for the DEA since 99."

This is exactly the kind of scenario criticized by Prof. Alexandra Natapoff, arguably the nation's leading academic expert on the uses and abuses of confidential informants, who maintains that snitch agreements can actually produce and tolerate crime instead of preventing it. As she wrote in 2006 in the San Francisco Chronicle ("California reconsiders snitching," Nov. 19, 2006):

Unlike the law-abiding citizen who calls 911 to report a crime or who testifies at trial, criminal informants face prosecution for their own crimes, and thus have deep incentives to lie. If a snitch can convince the police officer or the prosecutor that his information is useful, he may avoid arrest, avoid the filing of serious charges or obtain a reduced sentence.

Snitches may also receive cash, drugs, permission to buy drugs, forgiveness for prior crimes and lenience for new crimes, even those committed in other jurisdictions. In return, law enforcement agents obtain information and convenience: They avoid having to expend time and resources prosecuting the snitch.

These secret deals between the government and criminals can last for years, and they can be very costly to the public welfare.

In the worse cases, informants continue to commit new crimes, while government handlers may turn a blind eye as long as the informant is useful.

This makes snitching a kind of "get-out-of-jail-free" card.

That's apparently what may have happened in the Stanford case. In retrospect, though, the crimes the feds tolerated arguably dwarfed any offenders who Stanford's information helped finger.

Related Grits posts:

• Natapoff: Snitching can be "crime producing and corrupting"
  
• Snitch rules protect lying DEA agent
  
• Congress should restrict criminal informant use to prevent false convictions, police corruption
• Snitch whose crimes were tolerated by feds will be extradited to Mexico
  
• DEA snitch data lost
  

Inmate used as enforcer by corrupt Montague County Sheriff

The indicted Montage County Sheriff died last week, unfortunately before being held to account for his numerous crimes against inmates, female informants and the state. The Fort Worth Star-Telegram today has an extended story based on interviews with inmates, guards and other involved parties ("On Sheriff's watch, North Texas jail became den of drugs and debauchery," May 9). Here's a notable excerpt:

Though it remained largely hidden from view, lawlessness and debauchery in the jail continued and intensified, according to interviews with authorities, jailers and prisoners. Luke Bolton’s story, authorities say, is largely consistent with discoveries of state and federal investigators.

Bolton said that in 2006, a few months after his arrest for assaulting his girlfriend, jailer Calvin Morales approached him with an offer that came "from the very top." Keating wanted a misbehaving prisoner to be taught a lesson.

"It was a hit, in other words," Bolton said in the recent interview. "He said, 'If you handle this, it’s two packs of cigarettes.’ They moved [the other prisoner] to [Bolton’s cell]. I whipped him down and stomped on his head.

"Morales [and another deputy] were standing at the window there outside of Cell 19b, and when they saw the blood, they came in and said, 'It’s over.’ They pulled him out, bandaged him up and put him in another cell."

Bolton said he was handed the promised packs of Marlboro reds within minutes, itself a violation of state law. In the months to come, Bolton said he was involved in 17 jailhouse fistfights, almost all of them at the request of the sheriff, either directly or through guards.

Bolton described a jailhouse drug ring that included both prisoners and jailers.

"We were distributing it throughout the jail . . . meth, marijuana, cocaine . . . and the sheriff was getting his 10 percent," Bolton said. "I was told this by Calvin Morales, that the sheriff was getting his 10 percent."

Getting creative on polygamy prosecution

It being Mother's Day, let's turn our attention to the legislative aftermath of the 2008 Great Eldorado Polygamist Roundup, where more than 400 children were taken from their parents at a West Texas ranch run by a polygamous Mormon sect, the Fundamentalist Latter Day Saints (FLDS).

This time last year, FLDS children were separated from their mothers based on a creative legal ruling that the parents' religious beliefs constituted per se abuse; appellate courts later overturned those interpretations and ordered the children's return. Now the Texas Legislature is flexing its own creative muscles trying to salvage prosecutions from this fiasco.

Legislation to lengthen the statute of limitations on bigamy passed the Senate and will be heard this week in the House Criminal Jurisprudence Committee. Apparently, since authorities couldn't prosecute polygamists at the YFZ Ranch in West Texas as they'd prefer, they now want to give prosecutors up to seven years to pursue bigamy cases, ten if they involve a minor (although no victims are clamoring for prosecutions). The current statute of limitations for bigamy is just three years, as is the case for most felonies.

A different House committee already heard related but much broader legislation that has not moved nearly so far along in the process, so if this gets to the floor, I'd expect Reps Harvey Hildebran and Drew Darby to try to load it up with all the extra mischief in their bill. Sometimes you really have to get creative if you want to use the force of the state to impose your personal moral code on others but can't figure out how to do so within the constraints of their constitutional rights.

The blogger at Sore Toes and a Bleeding Heart yesterday blogged about the creative lawmaking that changed Texas' marital laws in 2005 to target polygamous Mormons who'd recently moved to West Texas. "Toes" pulled the money quote of the hearing from state Rep. Harvey Hildebran, who told the committee that any abuse report "has to come from inside, so we’ve got to be a little bit more creative in how we get the report."

Given what transpired after that, with more than 400 children seized on the basis of a hoax phone call, this is one of those quotes that makes you go, "Hmmmm." After all, the search warrant on which the raid was based was full of official "creativity."

Over at The Common Room, the Headmistress Zookeper further analyzes details from the original affidavit used to obtain the YFZ search warrant, noting that we now know a worker at a women's shelter suggested the name "Dale Barlow" to Rozita Swinton, the hoax phone caller (who claimed she'd been married three years but didn't know the name of her husband), after finding it on an Internet search while they were talking. The Headmistress also points out that Rozita's claim to have been treated at the local hospital was checked out by the Texas Rangers before the raid but couldn't be confirmed.

"There doesn't seem to have been any single identifying information in Ranger Brooks' application for a search warrant that he or somebody else didn't find via googling," she concludes. In other words, as Grits first suggested three days after the raid, the Great Eldorado Polygamist Roundup was a "setup job."

None of this inspires confidence. What's needed at this point to reestablish trust in the system are fewer "creative" efforts and more respect for the law and individual rights by Texas' political leadership.