Judge, not AG, responsible for TYC prosecution delays

Before deciding on the new comment policy announced at the end of this post, I was initially hesitant to blog about the minor kerfuffle last week when the Texas Civil Rights Project criticized the Attorney General for failing to yet take to court the West Texas sex-abuse cases that spawned the Youth Commission's recent troubles. It seemed like a trivial, non-story based on outside speculation, not any new event or information, so my impulse was to ignore it.

But then the press conference spawned a reaction story in the Midland Reporter-Telegram trying to portray the delays as an indication that the state's case was weak and couldn't really be proven. That BS deserves a response. We'll find out what the state can or can't prove when they get to court (at one point I was told by someone in a position to know that there was DNA evidence in one of the cases), but it's silly to claim the delay was because the case was weak when the AG has been trying to get the judge to set the case for trial for more than a year.

There hasn't been a trial in the West Texas State School cases for exactly one reason: District Judge Bob Parks won't set a trial date. According to a press statement the AG put out reacting to TCRP's press conference:

This office has made multiple attempts to advance these prosecutions and has informed the court that it is ready for trial. Nonetheless, despite the State's request that the trials proceed, the court has not set trial dates.

At the State's request, Defendant Brookins was set for trial in April, 2008. That trial date was delayed by the court after the defendant's lawyer was arrested. After months of repeated urging by the State, the court finally set a hearing in December, 2008 and assigned the defendant a lawyer. Since then, the State has repeatedly requested that the court set a firm trial date but the court has not yet done so.

Defendant Hernandez was set for trial in August, 2008. In late July, the court informed this office that the case would not proceed as scheduled. Since then, prosecutors with this office have contacted the court on at least five occasions--most recently May 28--in an attempt to obtain a trial setting.

After nearly two years of unnecessary delay, these cases need to proceed to trial. Although this office has requested trial dates on multiple occasions, the court has not set the trial dates. Nonetheless, we will continue to pursue this matter and will continue using all available legal means to advance the cases to trial.

The AG can't force Judge Parks to set a trial date, however shameful and embarrassing it may be for the judge to drag this out (much like the local District Attorney Randy Reynolds did so notoriously for so long). I understand TCRP chief Jim Harrington's frustration that the cases haven't gone forward, but he's blaming the wrong elected official.

Between Judge Parks and Randy Reynolds, one gets the sense that Ward County, Texas is about the most defendant-friendly venue in the nation for those accused of child sexual abuse.

Ironically, precisely because of these delays, in this year's Sunset bill the Lege authorized offenses at TYC facilities to be tried in Travis County (or the county where the offense was committed), but the language wasn't retroactive so the AG cannot seek to remove this case to the capital. Going forward, however, there are many instances where DAs or grand juries in small communities simply won't pursue charges against corrections officers, so the ability for TYC's Special Prosecutor to move cases to Austin should go a long way toward restoring accountability and give the public more confidence that staff-on-youth crimes at TYC won't go unprosecuted.

Note to TYC readers: With this post, this blog begins a new policy of disallowing comments on TYC-related strings. By all appearances, too many current and former TYC employees can't handle the privilege without abusing it and, not being their momma, I don't have time, motivation nor desire to constantly monitor them for obscenity, libel and off-topic attacks on co-workers by name, which is the specific misbehavior that finally spurred this change. Off-topic comments about TYC left on other strings will be removed. TYC employees have begun a bulletin board to discuss issues related to facilities and personnel. I'd encourage them to use it and hope it becomes a robust alternative to using Grits' comments section for the same purpose. We ain't doing it here anymore - at least for now.

I apologize to those commenters who were not abusing the TYC comment threads and regret that a few people's narcissism and lack of self-control ruined the forum for everyone.

SCOTUS DNA ruling not a problem for Texas, but maybe for Sotomayor

A number of readers have asked my views on last week's Supreme Court decision in the Osborne case out of Alaska where a slim, 5-4 majority ruled there is no constitutional right to postconviction DNA testing.

My first, admittedly parochial thought: Texans needn't particularly care. We have strong statutory access to post-conviction DNA testing in Chapter 64 of the Code of Criminal Procedure. According to media accounts, 46 states have DNA testing statutes on the books, and Texas has one of the best.

However, in the big picture, at least on the margins, the Osborne decision, as the Washington Post put it, "increased the risk that the wrongly convicted could be kept behind bars. Michael Landauer at the Dallas News Death Penalty Blog laid out the crux of the issue facing the court:

I'm torn. ... I have a hard time thinking it's OK to limit any evidence from being submitted that might prove guilt or innocence. Why would we do that? It drives me nuts that the appeals process is treated by some as a chess match instead of a search for truth. Once the jury speaks, that search ends and it's all about tactical, constitutional arguments, it seems.

Still, I would hate to see people who are so clearly guilty use this as a ploy to sorta roll the dice. We saw on Dallas DNA, the show about exonerations in our county, that some people really do that. They waste the courts' time just for kicks.

Landauer captures the issue precisely: This is basically about the convenience of judges and concerns about clogged court dockets vs. the right of innocent people to dispute their sentence, with a little snooty judgmentalism thrown in toward those who would "roll the dice." I replied thusly in the comment section:

Yes, on Dallas DNA and in some other instances, people who, in hindsight (after DNA fingered them), were clearly guilty tried to "roll the dice." They failed, and while their actions constitute an annoyance, it's not an intolerable one balanced against the large number of recent exonerations.

The problem is, we can't tell who is "clearly guilty," for sure, anyway, until AFTER the DNA test. Some people former Dallas DA Bill Hill thought were "clearly guilty" were granted DNA tests under Craig Watkins and turned out to be innocent!

As for those who would "roll the dice," there are already provisions in Chapter 498 of the Government Code to punish convicts for frivolous lawsuits by forfeiting their good time. (A bill to ramp up those penalties this session passed out of committee in the House but failed to receive a floor vote.) In practice, though, that seems like a different issue: It's simply untenable to deny actually innocent people access to a forensic test that could prove their innocence just because guilty people might ask for them, too.

How commonly do guilty people seek DNA testing? I've never seen a quantitative analysis, but this spring Mike Ware of the Dallas DA's Criminal Justice Integrity Unit told me that, among their DNA testing cases, the results so far had panned at roughly one-third each: Definitively innocent, definitively guilty, or inconclusive. (An example of inconclusive results might be if the DNA does not match but there were multiple suspects so the defendant can't be conclusively eliminated. Nobody knows how many different people's DNA might be on a sample until they run the tests.)

At the end of the day, if you do the tests (as Texas law requires), guilty people gaming the system will be identified and won't receive relief. However, if the state doesn't allow the test, the harm comes specifically to innocent people who've been wrongly convicted. Whatever the legalities, from a political perspective that's an insupportable stance.

The Dallas DA's office is an exception, both in Texas and nationally. If the DNA might be probative, they support requests for DNA testing through their Conviction Integrity Unit pretty routinely, even teaming up with my employers at the Innocence Project of Texas to vet all their old DNA cases, a process that's now nearly complete.

Elsewhere, though, for the most part prosecutors react defensively to requests for DNA testing because it implies their office might have got it wrong. IMO this prosecutorial impulse to vigorously oppose post-conviction DNA testing is misguided and runs counter not only to the interests of justice but the DAs' and judges' political interests. It opens them up for legitimate criticisms they cannot counter if someone they denied DNA testing to someone who was later proved to be innocent. In such situations, "I'm sorry" really doesn't cut it as a response.

Which brings us to our case study of the day on how denying post-conviction DNA testing can come back to haunt you. Go read this excellent piece from Politico by Jeffrey Deskovic, an innocent man falsely convicted of murder and rape at age 17 who was denied DNA testing by Judge Sonia Sotomayor during his habeas appeal. He spent six extra years in prison because of her decision, all for a crime DNA later proved he didn't commit. The headline of Deskovic's piece: "Sonia Sotomayor's 'empathy' isn't all it's cracked up to be." The whole article is worth a read, but these are the main conclusions he draws:

Despite Sotomayor’s rhetoric, her ruling in my case showed a callous disregard for the real-life implications of her rulings. She opted for procedure over fairness and finality of conviction over accuracy. Many of the victims of wrongful convictions serving long sentences had exhausted their appeals long before they were exonerated. In how many of those cases did Sotomayor vote to refuse to even consider evidence of innocence?

My case is far from unique in an age when the reality of wrongful convictions is well-established. We face the prospect that Troy Davis, an innocent man on death row in Georgia, faces imminent execution, absent intervention by the high court or by President Barack Obama.

I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

Judge Souter, who Sotomayor will replace, held in Osborne that there is not a constitutional right to DNA testing, which judging by her ruling in Deskovic's case appears to also be her position.

RELATED: Picking Sonia.

MORE: See an excellent analysis of this case from national Innocence Project staff attorney Nina Morrison.

Governor Perry's 2009 Criminal Justice Vetoes

Governor Perry announced this year's vetoes yesterday, although, since so much criminal justice reform legislation died in the waning days of the session thanks to partisan bickering over voter ID, not many bills that concerned this blog were even available to earn the Governor's wrath. Several of the vetoes I agreed with, while, as always, some seemed inexplicable even in the face of the Governor's written explanations.

Here are the criminal justice-related bills Governor Perry vetoed (links on the bill numbers go to Perry's veto statements):

Bad CPS bill goes down
SB 1440 by Watson/Madden is the bill discussed here and here that would have expanded CPS authority to seize kids for questioning without first notifying their parents or showing "good cause." (UPDATE: More from the Lone Star Times, which notes that "Perry had received 17,373 calls and letters against the measure and 455 supporting it.") However, those who fought the bill have some work to do in the interim to influence how similar legislation may look next session. In his veto statement, Perry concluded:

I am directing DFPS, through its parental advisory committee, to study the effect of the Gates decision on the ability of the department to appropriately enter a residence and, if necessary for the protection of the child, to transport the child for interviews in a neutral location. I am also directing DFPS, through its parental advisory committee, to develop and recommend statewide procedures to follow when seeking court orders to aid investigations, while protecting the rights of parents and families.

No tinkering with parole mechanics
SB 1206 by Hinojosa/Edwards would have authorized TDCJ to release inmates when they'd completed conditions for parole specified by the Board of Pardons and Paroles. Perry vetoed the bill because he said it usurped the authority of the BPP. However, he put the onus for getting offenders out the door more quickly back on the parole board, declaring in the veto statement:

But because I appreciate the goal of Senate Bill No. 1206 to not hold inmates longer than necessary, I am directing the Board and TDCJ to work together to ensure that offenders are not held for extended periods after successfully completing a rehabilitation program required by the Board as a condition for parole. They must set up procedures that provide for TDCJ to notify the Board of the successful completion of parole release requirements so that the Board may act to effect the release to parole.

If you're that 'vulnerable,' stay the hell off the road
SB 488 by Ellis/Harper-Brown would have creaed a new category called "vulnerable road users," basically defined as everybody not in a car, and punish drivers for getting too close to them. Perry vetoed it, rightly noting that plenty of protections are already in place. (UPDATE: See the Statesman for quotes from proponents criticizing the veto.) I agree the state has a responsibility to make cycling and pedestrians safer, but IMO that's best done through investments in infrastructure and engineering, not the endless creation of new traffic offenses.

Couples Only: Pardon authority bill needed companion resolution
SB 223 by West/Thompson would have authorized the Governor to give pardons in cases involving deferred adjudication. This was vetoed not because the Governor did not want the new power, but because a required constitutional amendment that needed to accompany the legislation did not pass because of the voter ID meltdown.

Perry: Failure to snitch on barratry shouldn't be criminal
SB 3515 by Dunnam/Carona would have created a new criminal offense specific to attorneys of failure to report barratry by other lawyers. Perry vetoed the bill because "would criminally punish a lawyer who had not committed barratry for the barratry committed by another person, and would, therefore, make a lawyer not engaged in criminal conduct subject to criminal penalties because of the criminal conduct of others."

Where's the 'swap' in land swap bill?
HB 3202 by Bonnen/Jackson transferring ownership of 332 acres owned by TDCJ to Brazoria County. In a surprise move that took the bill sponsors offguard, Perry vetoed the bill "because it does not require the payment of fair market value for the land, does not exchange land for other real property and does not involve land that a local government had donated to the state for construction of a prison. In fact, House Bill No. 3202 transfers land that has been held by the state since 1918 to a county without providing any compensation to the state for the loss of the land."

No loan assistance for prison staff
HB 518 by Kolkhorst/Van de Putte would have provided student loan assistance to correctional officers attending Sam Houston State. Perry said they shouldn't be specifically targeted and instead "the state should focus on fully funding the four main programs to make financial aid available to more students." So the state's chronically 3,000 guards short-staffed but the Lege declined to increase pay to market rates and the Governor vetoed the only substantive increase to prison staff benefits? Geez! Message to TDCJ staff: "Lump it and like it."

No leeway, however modest, on sex offender registration
HB 3148 by Smith/West would have allowed those convicted of indecency with a child for an offense committed when they were under 21 in "Romeo and Juliet" type cases to petition the court to keep them off the state sex offender registry. While acknowledging that this might happen only under "very limited circumstances," that a judge would still have to sign off, and that "other provisions of the criminal code provide some protections against very young victims being re-victimized," Perry vetoed the bill anyway, declaring, " I am not willing to take that gamble with the lives of young Texans."

UPDATE:

Early education also a veto victim
Governor Perry also vetoed the early education package discussed here on Grits among his line item budget vetoes (see the full budget proclamation [pdf]). According to the Houston Chronicle:

The governor’s veto of a $25 million pre-K expansion program startled supporters, including Rep. Mike Villarreal, D-San Antonio, co-author.

“I’m saddened and astonished,” he said.

Perry said $25 million appropriated for the program should be used to expand the number of students served by the existing pre-K grant program.

Judge Sam Kent impeached by US House; Keller's removal hearing moved to SA

Judge Sam Kent's impeachment by the US House of Representatives is not surprising news, but certainly welcome.

Meanwhile, I'm disappointed to learn Court of Criminal Appeals Presiding Judge Sharon Keller's removal hearing on August 17 will take place in San Antonio, not Austin - mostly because I'd hoped to attend and cover the spectacle. We'll see; perhaps that's still possible.

TDCJ population still creeping up, but tracking estimates

Here's the total number of people sent to Texas prisons and state jails on felony charges in FY 2008 from the six largest Texas counties and the number of prisoners released back to each of them, according to the Department of Criminal Justice annual statistical report (pdf):

Sent to prison:

• Harris: 15,276
• Dallas: 7,405
• Tarrant: 5,363
• Bexar: 4,669
• Travis: 3,143
• El Paso: 1,164

Released from prison:

• Harris: 14,654
• Dallas: 7,564
• Tarrant: 5,185
• Bexar: 4,550
• Travis: 3,084
• El Paso: 1,147

Overall, Texas sent more people to prison in FY 2008 than it released according to the report: 74,283 people entered TDCJ last year, while 72,002 were released and sent home (out of 156,126 on hand as of Aug. 31, 2008).

TDCJ's population actually maxxed out at 158,217 on May 1, 2008, but by August that number had declined to 156,126. That's about what LBB projected (pdf), to give them credit (they'd estimated 156,137, which is pretty darn close). But the rubber will meet the road this year when LBB predicts that, by the end of FY 2009 (in August), TDCJ's population will have declined to 154,618, so it'll be interesting to see how closely their predictions hold when this year's numbers come out.

Department of "Public Safety" or "Collections"?

According to a reader who attended, at yesterday's meeting of the Public Safety Commission there was a lengthy discussion, prompted by Commissioner Carin Barth, of the Orwellian-named "Driver Responsibility" program. Rather than criticize the draconian, regressive nature of the fee, though, which was created during the 2003 budget crisis expressly as an alternative to property tax hikes, Commissioner Barth wanted to know why there was only a 30% collection rate. (For the current fiscal year, the board was told, DPS has collected $170 million.)

That's easy enough: This is an administrative fee piled on top of the already-steep criminal penalties for a no-insurance ticket or DWI stop. It's quite high and stretches out over three years, in some cases at a cost of $1,000 per year or more. In the case of no-insurance, in particular, the main reason people aren't insured is usually cost, not criminal malice. So piling on needless extra cost actually reduces the likelihood drivers can afford insurance and arguably reduces public safety. After a certain point, there is a diminishing return on the effectiveness of high fines and this fee long ago crossed that threshold.

All of the commissioners expressed dissatisfaction with the collection rate, but none expressed any reservations about the program itself -- though they did note that several legislators are not supportive of the program.

Drivers License Division Chief Judy Brown noted that the program was modeled after New Jersey's ("why we would want to emulate ANYTHING about New Jersey is anathema to me," my informant intones as an aside) -- and she said the NJ program had tools at its disposal which are not available to the DPS, particularly the ability to put liens on people's homes and to garnish their wages. (!) "Don't be surprised if DPS seeks statutory authority for this next session," I was told.

The vendor in charge of collections makes automated calls to non-payers and sends out dunning letters on the Department's letterhead. (Chief of Audit & Inspection Farrell Walker committed a gaffe of sorts when he referred to these as "annoyance calls" and was gently upbraided for it by Commissioner John Steen.) The Commission appears to favor increasing the frequency of the "annoyance calls" and dunning letters, and reporting non-payers to the credit bureaus. In fact, there's some sentiment for wanting to review the contractor's performance. Chairman Allan Polunsky specifically asked staff whether there is a termination clause in the contract. The contractor will be summoned to attend the next PSC meeting.

It sounds like the PSC is focused on the wrong problem regarding driver responsibility fees. I'm surprised to hear commissioners weren't instead discussing the new indigency program mandated by the 81st Legislature in DPS's Sunset bill. Instead they're focused on mulcting more money from already-punished Texans who can't afford it or else busting them with the credit agencies. A little tone-deaf to the zeitgeist of the times, don't you think?

Anyone who'd like to educate the PSC about the Driver Responsibility program may want to mark their calendars for the third Thursday in July when the commission meets again.

RELATED:

• On the limits of the justice system as tax collector
• 70% of 'Driver Responsibility' fees go unpaid
• Bad TX law fills road with unlicensed drivers, jails with non-crooks
• More than 10% of Texans currently wanted by police
• Driver Responsibility fee had unintended consequences, say prosecutors

"Keystone Kops at the Crime Lab"

The title of this post is the headline from an excellent piece in Miller-McCune about problems at forensic crime labs, in which naturally the Houston crime lab figures prominently. But they also mentioned another Texas connection:

In West Virginia, criminalist Fred Zain showed just how much damage a compromised police forensics laboratory can cause. In the 1970s, Zain, a gun-toting West Virginia State Police officer, was assigned to the state crime laboratory as a serologist. He entered the job with minimal training, a corner-cutting attitude and a pro-prosecution bias. If the evidence appeared weak against a defendant whom Zain considered a sleazeball, the criminalist made the evidence look stronger by exaggerating or falsifying test results.

For many years, prosecutors did not publicly question Zain's competence or honesty; after all, he told them what they wanted to hear. Many defense lawyers, jurors and judges lacked the scientific knowledge to question Zain's results. As for Zain's laboratory colleagues, some maintained ignorance, while others suspected wrongdoing but feared the consequences of whistleblowing. ...

By 1993, the extent of the damage done by Zain had become so evident that a prosecutor petitioned the Supreme Court of West Virginia, requesting an investigation. The justices appointed James O. Holliday, a retired judge, to lead the inquiry.

Holliday filed a report that had to horrify anybody who believed in the integrity of the justice system. At least 134 cases relying in significant part on Zain's findings needed re-examination. In the end, Zain's misconduct led directly to the release of five West Virginia inmates and one inmate in Texas. (Zain had moved to Texas in 1989 where he worked in the Bexar County crime laboratory, [emphasis added] which serves greater San Antonio.)

Criminalists traveling from outside West Virginia to conduct a scientific inquiry for Holliday determined that Zain was guilty, among other misconduct, of:

• Reporting "scientifically impossible or improbable results"
• Stating that "multiple items had been tested when only a single item had been tested"
• Offering "inconclusive results as conclusive"
• Failing to report conflicting results
• "Implying a match with a suspect when testing supported only a match with the victim"
• "Repeatedly altering laboratory records"

Holliday concluded that evidence offered by Zain "at any time in any criminal prosecution should be deemed invalid, unreliable and inadmissible."

What Texas traffic enforcement can teach the national healthcare debate about "individual mandates"

To veer slightly off topic for a moment, I wanted to record an observation about the national health insurance debate presently going on in Congress, and in particular the move to create an "individual mandate" for the uninsured requiring them to purchase health insurance.

Texas and many other states have already tried "individual mandates" for auto insurance, and the results have been abysmal: About 25% of Texas drivers have no auto insurance (roughly the same percentage of people that currently lack health insurance).

When Texans are ticketed for no insurance, they face steep fines which, rather than encouraging compliance with the law, frequently sink the uninsured even further into a financial hole and make it less likely they'll be able to afford insurance. Yet, at the same time, the state invests virtually zilch in mass transit so as a practical matter, it's difficult bordering on impossible in many areas to work and survive without a car.

Thus the functional effect of an "individual mandate" policy is to criminalize poverty, or at least that's been the case with auto insurance. I'd hate to see a health insurance model follow down the same, failed path.

Madden expects veto of bad CPS bill

According to an action alert from the Free Market Foundation urging Governor Perry to veto SB 1440 expanding CPS powers, one of the bill's co-sponsors, Jerry Madden, now think last-minute amendments were a "mistake" and he expects Governor Perry to veto the legislation. I hope he's right. All the Governor's vetoes must be announced by Sunday.

RELATED:

• Conservative veto call for expanded CPS powers growing louder
• Bad CPS bill deserves a good veto

Police use of unmanned spy drones won't expand beyond Houston, yet

Here's a curious little story out of Collin County about the Sheriff's Department being turned down by the Federal Aviation Administration to use federal stimulus money to purchase "unmanned drones," for heaven knows what purpose. According to the McKinney Courier-Gazette (June 16), Sheriffs Office "officials said the department withdrew their request application from the Collin County Commissioner's Court to seek a federal stimulus grant to purchase the devices because FAA regulations have listed the majority of Collin County's skies as restricted airspace."

According to this source, however, it's not just that Collin County is restricted space but the FAA simply does not approve unmanned drones for routine law enforcement use outside of a couple of pilot programs. "Despite pressure from some law enforcement agencies, the FAA is holding firm to its policy against routine use of unmanned aerial vehicles. "There is nothing to our knowledge and no UAS technology at this time that would allow unmanned aircraft to meet the same 'see and avoid' [regulatory technical] standard that manned aircraft have to operate under," FAA spokesman Les Dorr recently told GovTech.com (06/09)

The Courier-Gazette described similar barriers for Collin County:

Chris Dancy, a spokesman for the Aircraft Owners and Pilots Association headquartered in Frederick, Ma., said he isn't aware of any police agencies or sheriff's department who have fully implemented the technology because of the same problem.

He said the vehicles have to be under a constant monitor while they are in the air and don't have the technology to sense other objects in their airspace.

"All (unmanned aerial vehicles or UAVs) all lack sense and avoid capability," Dancy said. "A lot of work is being done on that in the aviation industry and our association is working on ways to safely integrate UAVs into airspace so they can share the same space with manned aircraft safely. We're not oppose UAVs. We're just not able to operate them safely in the same airspace with manned aircraft."

New advancements in technology has made UAVs smaller and more economical, but even something as small as a bird can cause problems, Dancy said.

"What a lot of law enforcement agencies have been looking at are fairly small lightweight UAV systems that would operate in relatively low altitudes," Dancy said. "The problem is if you've ever seen the affects of a bird strike on a small or large aircraft and when you have objects moving at such fairly high speeds, it doesn't take lot to cause significant damage to any type aircraft."

In their coverage of the topic, the Dallas News reported that:

The county was pursuing the plans knowing the FAA hadn't approved the use of the aircraft in heavily populated areas. That agency has temporarily allowed Houston and Miami to fly drones as part of a study of how their police departments use them.

I'd heard Houston was testing unmanned drones, but didn't realize the study was still going on. I wonder what they're using them for? I can see uses like search and rescue assistance after Hurricane Ike when the tool could have been incredibly helpful. But I also see many problems with using the technology in service of routine law enforcement. It's obvious that there are powerful military-industrial complex interests with big stakes in expanding markets for these drones.

In addition to safety concerns, unmanned drones raise issues of modern technology bumping up against antiquated interpretations of the Fourth Amendment and American privacy rights. Current case law has a "plain sight" exception to the Fourth Amendment, but plain sight takes on a different connotation when, in an urban area, police fly unmanned spy drones over fenced backyards or conceivably even use zoom lenses to peer into windows. That's "plain sight" of a decidedly not so plain variety (or rather, of a "plane" variety"), which raises questions traditional search and seizure law finds itself particularly ill-equipped to answer.

Criminologists: Death penalty does not deter

Via Capital Defense Weekly, I was interested to see this new survey of top US criminologists (pdf) on the question of whether the death penalty deters murder, a debate refocused by several much-disputed studies (mostly by economists) in the last six years claiming to find a deterrent, after "scores" of studies by criminologists over previous decades had reached the opposite conclusion. The authors analyze recent studies on death penalty deterrence and follow up by replicating a survey of criminologists published 12 years ago, before the recent econometric studies were published.

Despite these new studies, however, most criminologists (88.2%) still "do not believe the death penalty is a deterrent," researchers found, while 87% said abolishing the death penalty would have no effect on murder rates.

A whopping 90.9% thought it was largely or totally accurate that "Politicians support the death penalty as a symbolic way to show they are tough on crime," but 89.5% said it was largely or totally inaccurate that "The death penalty significantly reduces the number of homicides."

The empirical evidence contradicting the deterrence thesis is quite strong. For example, in 2007, the authors note, the homicide rate in states with active death penalty statutes was 42% higher than that of non-death-penalty states. Read the full paper (pdf, 20 pages with appendices) for much more detail and references to research on both sides of the debate.

MORE: From the Dallas News Death Penalty Blog.

Austin PD traffic stops up 30% last year, more than 1 in 20 result in arrest

How can a one-year, 30% increase in traffic stops by Austin police be justified?

I could scarcely believe my eyes when I examined the City of Austin's most recent racial profiling report (pdf, published 3-2-09), and read that the number of traffic stops increased to 230,949 in 2008 from only 178,087 in 2007. Reasons given in the report for the increase were:

1. patrol being near full staffing;
2. the motors officers stopped taking routine calls for service and went back to working traffic enforcement full time;
3. CompStat implementation that assigned officers to traffic enforcement in crime hotspots to increase visibility and proximity to crimes; and
4. the Home for the Holidays initiative that added over 4,000 additional hours of sworn working on traffic enforcement.

But those are just tactics used to implement the APD administration's policies. In the big picture, this tells us Austin's new chief is dramatically shifting resources toward routine traffic patrol and away from other crimefighting tactics. At 52,000 additional traffic stops, that's a major, one-year re-allocation of staffing resources.

Though officials will certainly claim the reason is public safety, it's hard not to suspect that revenue generation must be at least part of the motive.

Another eye-popping figure: The number of consent searches at traffic stops increased a whopping 106%, but that figure is deceptive because the overall numbers were small. In 2007, APD conducted just 211 searches, while in 2008 the number jumped to 435. The number of "consent searches" in Austin has been much lower in recent years after the agency implemented a policy of requiring written consent if an officer didn't have probable cause to search.

Still 106% is far beyond a statistically significant increase. My hypothesis to explain it (more in-depth research would be required to tell for sure): The jump is likely attributable to the CompStat tactic described in #3 above of over-enforcing traffic laws in violent crime hotspots. After all, this approach presumes that these are really "pretext stops," that the real purpose of pulling people over is as an excuse to look for evidence of other crimes.

In the big picture, though, the vast majority of Austin police searches at traffic stops in 2008 - 11,637 of them, to be exact - were "non-consent" searches. Of those, 15.8% were based on safety frisks, 38.9% were incidental to arrest, and 25.6% were based on probable cause.

In 2008, Austin PD arrested someone at more than one out of every 20 traffic stops - at 11,353 traffic stops in 2008 representing 5.3% of all APD traffic stops. The top three reasons for arrests:

• 5,388 for outstanding warrants.
• 3,486 because the driver was intoxicated.
• 1,002 because the driver was in possession of illegal drugs.

Arresting folks for outstanding warrants isn't too difficult given that more than one in ten Texas drivers have them, mostly because traffic fines and fees have become so steep many people cannot pay.

An additional 2,740 stops could have resulted in arrest, but the officers used their discretion to write a "field release citation" instead, which reduced considerably the number of new entrants to jail.

Pedestrian stops by APD also increased by 29% from 2007 to 2008, to 18,111. In this area, the use of "field release citations" was especially pronounced - the procedure was used 7,673 times, or in 42.4% of all pedestrian stops. An additional 20.7% of pedestrian stops (3,742) resulted in a custody arrest.

A 30% increase in traffic stops seems hard to justify. Sure, it helps fill the city coffers, but there's an opportunity cost: What other areas are being understaffed while APD officers write 30% more tickets or play the role of bill collector/enforcer for outstanding traffic fines?

Codifying journalists' privilege

One piece of hotly debated legislation I did not track this session (but which particularly concerned many of our prosecutor friends), was HB 670 by Martinez-Fischer creating a qualified privilege for journalists not to testify in criminal cases. The bill was signed by the Governor last month and took effect immediately. Here's a summary of the bill from the Freedom of Information Foundation:

The law says that any body with authority to issue a subpoena cannot compel a journalist to testify or produce or disclose in an official proceeding any confidential or nonconfidential information, document or item obtained or prepared while acting as a journalist. The source of any information, or document described in the law could not be subpoenaed with some exceptions.

It provides that, after notice and an opportunity to be heard, a court may compel testimony or require the journalist to produce any information or document or the source if the person seeking it makes a clear showing that: all reasonable efforts have been made to get the information from an alternative source, the subpoena is not overbroad, unreasonable or oppressive and limited to the verification of published information, and the subpoena is not being used to obtain "peripheral, nonessential or speculative information."

The information has to be relevant and essential to a case. It must be central to the investigation or prosecution of a criminal case based on something other than the assertion of the person seeking the subpoena and reasonable grounds exist that a crime has been committed.

A journalist would have to testify if he or she were an eyewitness to a crime. Testimony would be required if the source was someone who had participated in a violent crime and the person seeking the testimony had exhausted reasonable efforts to get the information from some other source. Testimony would be required if it was reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.

An application for a subpoena would have to be signed by a district attorney or county attorney. Timely notice would be required and an order would have to include "clear and specific findings" on which the court relied in issuing the court order.

House Speaker Tom Craddick allowed a similar bill to come to a vote in 2007, but it was late in the session and a Republican legislator shot it down on a technical point of order.

Those caveats seem to address all of the knee-jerk critiques that the bill will hinder prosecutors from securing convictions. The biggest limitation may be to say prosecutors can only seek journalists' files for the "verification of published information," which keeps the state from undertaking fishing expeditions in journalists' story files.

The bill as written would apply to many bloggers, by my reading, when they're functioning in a journalistic capacity, categorizing as journalists those who are:

earning a significant portion of the person's livelihood by obtaining or preparing information for dissemination by a news medium or communication service provider; or ... serving as an agent, assistant, employee, or supervisor of a news medium or communication service provider.

I am arguably both an agent and a supervisor of this blog, for example, which would be categorized as a "news medium" under the bill's definition section.

At the end of the day, though, I doubt this bill will make a big difference as a practical matter. Most Texas cases involving journalists held in contempt for refusing to supply testimony have come in murders or other serious cases. In such instances, HB 670 doesn't forbid subpoenaing journalists to testify, it just creates a few minimalist hoops the state must jump through (essentially performing due diligence) before it can force them to do so. We'll have to wait and see whether, in practice, the legislation functionally provides journalists significant new protections.

Hays County will use expanded citation authority to relieve jail overcrowding

After the Legislature approved new authority in 2007 to give citations instead of arresting for petty misdemeanors - a move aimed at giving counties new tools to react to rising costs of jail overcrowding - only a handful of agencies initially embraced the idea. Increasingly, though, realities of jail overcrowding are trumping political concerns and even relatively conservative jurisdictions are beginning to issue citations for nonviolent B misdemeanors.

According to the Austin Statesman, the Hays County Sheriff (south of Austin) will begin using the citation authority created in 2007 as a stopgap while Sheriff Tommy Ratliff pushes a new jail: "Ratliff said his office's new program to cite and release offenders for some Class B misdemeanors such as criminal mischief is aimed at" bringing the number of prisoners down.

Dallas now uses this authority, and this year the City of Austin finally began implementing the new policy. Perhaps a few dozen other agencies around the state, big and small, are using it, too.

Law enforcement organizations in Harris, Bexar and Smith counties, by contrast, along with many others, also face serious jail overcrowding dilemmas, but local officials have refused to allow expanded use of citations to relieve the burden. As budgets get tighter, though, I suspect more agencies will follow Hays County's lead.

See prior, related Grits posts:

• Austin PD will finally implement citations for petty misdemeanors
  
• Smart policies can boost police coverage even in tight economy
  
• Long booking times a strong argument for police using new citation authority
  
• APD finally implementing B misdemeanor citation policy
  
• Police union backs using citation authority at Austin PD
  
• With safety costs rising, why won't Austin PD use new citation authority?
  
• Nuts and bolts of citations for low-level misdemeanors explained by Travis Sheriff's Office
  
• On the source of volitional jail overcrowding in Bexar County: Why solve a problem when you can create one?
• Tyler officials should listen to voters, use new tools to reduce jail overcrowding
  
• Sheriffs more likely than PDs to welcome new arrest discretion
  
• Jefferson County works out kinks with new cite and summons authority
  
• How one Texas county will take advantage of new law to reduce jail overcrowding
• HB 2391 could save Bexar taxpayers $10,000 per day
• Cite and summons for low-level offenses could free up jail space
• Texas Lege approved new tools to reduce jail overcrowding, if police can change their thinking

Tazing Great Grandma

I'm a little late to the party on this one, but a Travis County Constable's deputy made headlines by tazing a 72-year old great grandmother last month after she dared him to - essentially for non-compliance. A flurry of media attention accompanied the release last week of the dashcam video. According to KEYE-TV:

Deputy Chris Bieze pulled over Kathryn Winkfein on May 11th at 2pm for speeding on Highway 71 and Bee Cave, but the Great-grandma refused to sign the ticket.

"Take me to jail, go on and take me to jail," she yelled at Deputy Bieze.

Winkfein got out of the truck and walked close to the line separating the shoulder from the traffic zipping by.

"Give me the (expletive) thing, and I'll sign it," she yelled about the ticket.

Then came the push.

"You're going to shove a 72-year-old woman," Winkfein screamed?

Sgt. Major Gary Griffin said Bieze moved Winkfein to prevent her from stepping out onto the busy and dangerous stretch of highway.

"He didn't push her into a ditch tumbling down like a rock, he moved her," he told CBS 42’s Katherine Stolp.

After Bieze repeatedly told Winkfein to step back or get tased, the 72 year old dared him to do it.

"He told her nine times, nine times,” Sgt. Major Griffin exclaimed.

“Go ahead tase me," Winkfein told Bieze. "I dare you."

So, he did. Sgt. Major Griffin admitted to us his Deputy could have handled the situation better.

The deputy's boss said the tazing followed departmental policy, but if so their policy is flawed. The deputy could have simply arrested the woman, there was no need to fire the taser. As it turns out, the same deputy is the person responsible for training everyone in his department on taser use!

Maybe deputy constables shouldn't be out making routine traffic stops if the folks training them think using force under such circumstances is okay. The Travis County Sheriff has the same use of force policy, according to KEYE, but Sheriff Greg Hamilton publicly criticized the deputy constable and said the use of force was unacceptable. (I'll see if I can't lay my hands on a copy of the policy and follow up.)

The Department of Justice earlier this year criticized the Austin PD's failure to provide good supervision and training on using tasers and other intermediate-range weapons, and this incident makes me think that shortcoming may be more widespread than just at APD.

Interview on innocence with Dallas public defender

At the Dallas News, check out Jennifer Emily's interview with "Dallas County public defender Michelle Moore [who] has represented seven of the 20 people proven innocent by DNA testing after they had been unjustly convicted and served time in prison." I worked with Moore for a time when she was a boardmember of the Innocence Project of Texas, a position she left when she was assigned to handle post-conviction DNA testing cases for the Dallas Public Defender office.

Moore said the best thing police could do to prevent false convictions would be to use "blind sequential lineups." Asked whether Dallas would see more exonerations, Moore declared she had "several cases on the radar at present that I would bet money on."

Might threat of punishment reduce drug dealing more than punishment itself?

The Wall Street Journal reports that 30 US cities on Monday will announce participation in an anti-crime strategy that IMO has a ton of promise ("Cities join unorthodox crime program," June 13):

The initiative, run by the John Jay College of Criminal Justice, targets violent crime and open-air drug markets that are the scourge of some communities. The program is potentially controversial because it involves not prosecuting known offenders if they agree to quit their criminal activities. ...

Developed by David Kennedy, a criminologist at John Jay College in New York, the crime program combines elements of initiatives run in the 1990s in Boston and in High Point (North Carolina) in 2004 that were credited by authorities with helping reduce youth gang and drug violence. Boston authorities say their program cut youth homicides by two-thirds and homicides citywide by half. The High Point plan eliminated drug markets citywide, the city says.

Under the project, law-enforcement officials and prosecutors in the cities identify individuals operating in violent-crime areas who haven't yet committed serious violent crimes, and build cases against them, including undercover operations and surveillance. The culmination is a "call in" when the case is presented to the would-be suspect in front of law enforcement, community leaders, ex-offenders and friends and family.

"The prosecutor talks to them and lets them know: 'we could arrest you now but we won't because the drug dealing stops today, the violence stops today,'" said Jeremy Travis, president of John Jay. "If you continue, you now know the consequences and you've seen the case against you but we don't want to send you to prison."

Meanwhile, violent criminals who are identified will be arrested. In the High Point project, drug dealers weren't included in the program if they had a history of violence; had gun violations that were considered dangerous; or had pending cases against them.

I like this strategy because it overcomes one of the fundamental flaws with the economic premise behind crime and punishment that make incarceration a failed approach for eradicating drug crime, particularly open air drug markets.

The strategy makes even more sense when you realize, as the authors of Freakonomics demonstrated, that most drug dealers live with their mothers and thus are probably more susceptible to community influence than antisocial stereotypes give them credit for.

The economic premise behind most criminal laws is that the punishment is the "price" for illegal activity, which offenders should presumably not participate in unless they're willing to "pay." However, this conception of punishment as "price" ignores the dramatic real-world uncertainty about outcomes and what economists call "free rider" problems. Most people involved in most illegal drug transactions are not arrested or incarcerated, so participants in drug markets do not perceive they'll necessarily pay a "price" for their offenses, and certainly not for the next marginal offense where odds of capture are statistically pretty low.

That uncertainty makes it much less likely criminal laws influence behavior because most rational risk assessors do not assume they'll pay a "price" for any given offense. But if you inform somebody (and the people around them) that the Sword of Damocles is looming directly over their head so that they perceive incarceration as an immediate risk, that "price" becomes much more real and likely to influence behavior, particularly among callow youth who aren't yet so deep in the game.

For more details on what's become known as the "High Point" strategy (named for the town in North Carolina where it was popularized), see past Grits coverage and also these resources on the topic:

• Wall Street Journal: "Novel police tactic puts drug markets out of business," Sept. 27, 2006
• David Kennedy: "Drugs, Race and Common Ground: Reflections on the High Point intervention," based on remarks at a 2008 NIJ conference
• YouTube video (11 minutes): "Innovators' Focus: Overt Drug Market Strategy Curbs Crime"

Feds assess market for illicit drugs, treatment trends

Via this Houston Chronicle story, I learned that the National Drug Intelligence Center this week issued its annual "market analyses" on illicit drug seizures, arrests, and trends in so-called High-Intensity Drug Trafficking Areas (HIDTAs). Here are the Texas assessments:

• North Texas HIDTA (DFW)
• South Texas HIDTA (San Antonio to the border)
• Houston-area HIDTA (16 counties around Houston and along the coast)
• West Texas HIDTA (El Paso, Midland, Odessa, and Big Bend-area counites)

One item that stood out in the charts and tables about each jurisdiction: In all four areas, according to the market analyses, adult admissions to publicly funded drug treatment facilities declined between 2006 and 2008, especially for harder drugs.

In Harris County, for example, the number of drug-related treatment admissions to publicly funded facilities declined over that period for powder cocaine (924-831), crack cocaine (1,798 to 1,607), and heroin (420 to 186). In the San Antonio HIDTA, drug treatment admissions declined from 2006 to 2008 in every category, which was the pattern in all TX jurisdictions, according to NDIC, with one exception: Admissions for heroin treatment increased in Dallas County, though they declined for meth and both crack and powder cocaine.

I find this trend especially curious because the state of Texas invested more than $200 million in new drug treatment and prison diversion programs beginning September 2007, so it seems like the numbers should be headed in the other direction. It makes me wonder about the quality of NDIC's data.

Meyers, Keasler, should be Dems' CCA electoral targets

The Dallas News' Michael Landauer writes that "Lawrence Meyers, the longest-serving member of the Court of Criminal Appeals, says he's running for re-election. In doing so, he cites the court's reputation for fairness. Try not to laugh." The other two Texas CCA judges up in 2010 are Michael Keasler and Cheryl Johnson, all Republicans.

There is no liberal wing on the Texas Court of Criminal Appeals. There's a conservative wing, to which Judge Johnson belongs, and a more or less totalitarian wing, in which Keasler and Meyers reside along with Presiding Judge Sharon Keller.

I respect and support Judge Johnson, who has been a key leader on the court standing up to Judge Keller and trying to haul its reputation out of the muck. IMO, she's earned her spot battling it out in the trenches with Keller and Co. for the soul of the court. The Dems would have to come up with a stellar candidate for me to consider voting against her. Against Keasler and Meyers, I'd be much less picky: This court desperately needs new blood.

RELATED: Court races will be spearpoint of Texas Dems' future statewide success

Early education and crime

While this blog mostly focuses on the mechanics of the criminal justice system, the truth is we must look outside the framework of police, courts and prisons to discover the real causes of crime and identify the full range of possible solutions.

At this point in US history, additional spending on incarceration probably isn't worth the crime fighting bang for the buck compared to other ways that money could be spent - particularly investments in education and mental health care. So I was interested to see a couple of headlines this week here and yon promoting early education policies that seem likely to reduce crime:

• Editorial: Perry should sign pre-K bill
• Officials: Early Education Effort Cuts Crime

The editorial, by United Way of Texas President Karen Johnson, quoted a study out of Texas A&M which "found that for every $1 invested in high-quality pre-k, at least $3.50 is returned to Texas communities. Savings for taxpayers are realized long-term because children who experience high-quality pre-k have higher rates of high school graduation, higher earning power as adults, fewer referrals to special education, and significantly less involvement with the criminal justice system."

The other link is out of Iowa, where law enforcement is pushing early education spending on the grounds:

that high school dropouts are three and one half times more likely to be arrested and eight times more likely to be incarcerated. Nearly 70 percent of state prison inmates nationwide failed to earn a high school diploma, states the report. Officials said that if the male graduation rate increased by 10 percent in Iowa, it's estimated to save $88 million every year.

I wrote recently about the United Way's "Common Good Forecaster," which posited a link between education levels and crime. According to the backup material (pdf) for that web tool:

Rigorous studies show a strong link between more education and reduced rates of violent crime (Lochner 2004). A one-year increase in the average level of schooling in a community is associated with almost a 30 percent decrease in the murder and assault rates (Lochner 2007), results which are particularly reliable through high school. Of course, one important reason is that more school generally brings higher wages and expanded job opportunities and thus less incentive to engage in criminal activities. However, wages and jobs are not the end of the story. Classrooms help instill values that oppose criminality and socialize students to become better citizens. In many cases, schooling may also teach patience, reduce tolerance for risk-taking, and provide a supervised environment that tempers negative interaction among young people. And finally, youth who leave school early risk being influenced by a more negative set of peers, while those who stay are more likely to build a constructive social network and set off on a path toward productive work experiences.

Too often when we talk about crime fighting, the focus is solely on the cops and the courts. But factors like education can be equally critical. Indeed, there's a case to be made that, with prison populations bursting at the seams, the best way to chip away at crime isn't locking even more people up but helping more young kids have a better life.

RELATED: From the Denver Daily News, "Fewer prisoners = more graduates?"

See related Grits posts:

• Back to School: Fight crime, invest in kids
• Education a solution to crimes from murder to graffiti