Faulty Texas eyewitness case examined by NCSL

At the National Conference of State Legislators' Thicket blog, I ran across this post featuring audio files from a recent forum in San Diego, CA, featuring audio files of presentations from Texas exoneree Thomas McGowan, the victim in his case, as well as state Rep. Jerry Madden and Texas Court of Criminal Appeals Judge Barbara Hervey. McGowan's false conviction, like so many others, featured mistaken eyewitness testimony that was later invalidated by DNA evidence.

Cutting state psych hospital budgets could backfire

The last post focused on budget cuts proposed by Texas criminal justice agencies, but in the San Antonio Express News I noticed this possible cut in the human services sector that could give county jails a lot of problems if enacted:

Some agencies had made their proposals public earlier, including human services agencies that could save $303 million in state spending through such cuts as reducing Medicaid reimbursements for health-care providers and serving fewer patients at four state psychiatric hospitals, including the one in San Antonio. Those cuts would cost the state another $238 million in federal matching funds.

About half of the beds in state psych hospitals are "forensic beds" which are used for competency restoration, or ensuring mentally ill people are stable and on their meds before they're tried. Texas has struggled to keep down the waiting list for these beds, and there have been times when jails must hold pretrial defendants many months before a state hospital bed opens up. This is both bad for the mentally ill defendant (sometimes very bad) and creates resource, staffing and classification problems for jails that drive Sheriffs nuts. Besides forfeiting federal matching funds, eliminating psych beds as suggested would create even more jail costs for local, county taxpayers.

This example shows how interrelated a great deal of criminal justice spending is, and how cuts to one part of the system can cause even greater costs for others. Shifting expenses from state hospitals to already overburdened county jails won't mitigate the state's responsibility to provide restoration services to incompetent defendants, it just gums up the system and pointlessly soaks taxpayers for services the state is ultimately still obligated to supply.

TDCJ proposes 5% budget cuts

Though the agency requested an exemption from budget cuts, here's the proposal (pdf) the Texas Department of Criminal Justice submitted to state leadership yesterday regarding how it would cut 5% from its budget without closing any prison units - mostly by laying off more than 3,000 employees. I'll have more to say on this when I've had a chance to read it in more detail, but wanted to get the link out there. UPDATE: See initial coverage from AP, the Austin Statesman, and the Houston Chronicle.

The Texas Youth Commission was late with its submission but I'll add a link when it becomes available. UPDATE: Here's the link. See a brief description from Mike Ward at the Statesman, who reports:

Victory Field Correctional Academy in Vernon and the West Texas State School in Pyote, both slated to be closed in August, will instead would shut down April 2 to save about $3.5 million.
Six dorms at several youth prisons would be closed and a total of 138 jobs — some filled and some vacant — would be eliminated to save about $9 million. But officials cautioned in the budget-reduction plan that the dorm closures and layoffs could disrupt operations, and they requested an exemption to ensure that safety and security are maintained.
Staff vacancies would not be filled to save about $7.5 million.

UPDATE: Here's the plan for budget reductions (pdf) at the Texas Department of Public Safety. The Statesman has more.

AND MORE: Here are the proposed cuts (pdf) suggested at the Juvenile Probation Commission.

NUTHER UPDATE: I'll have a more complete analysis later, but here are the TDCJ budget items that stood out upon initial perusal of their proposed reductions (most of which they've suggested be waived):

• Firing 2,037 security staff
• Slash operational funds for food and fuel, assuming non constat that market prices won't fluctuate
  
• Slashing $42 million from mental health care
• Reduce the number of probation officers, parole officers and Hearing Officers at the Board of Pardons and Parole
• Cut direct funding to CSCDs for probation officers by $22 million
• Transfer "underutilized" or unspent treatment diversion funding, since as the programs rolled out, "utilization rates have been below appropriated levels." (The message here to judges and CSCD directors: Use it or lose it!)
• Eliminating energy and water conservation programs
  
• Divert $5 million in commissary profits currently used for inmate recreational and educational materials to budget reduction
• Delay opening long-term medical facility in Marlin
  
• Cuts to substance abuse treatment, intermediate sanctions facilities, treatment services, halfway houses, and the State Counsel for Offenders

Among possible cuts TDCJ alluded to but did not formally suggest: TDCJ has replacement contracts with several private facilities it's scheduled to renew in the next 12 months. But since the agency presently enjoys more than 2,300 empty beds, including private capacity (with numbers trending downward), perhaps those inmates should be absorbed into other units and some or all of those contracts be allowed to expire?

Otherwise, this is a very political document from TDCJ, cutting popular programs and suggesting large staffing cuts that make no sense from a security standpoint unless they actually close prisons. And yet, they suggest cutting everything but prisons, including programs that have helped reduce prison populations and saved the state hundreds of of millions in additional incarceration costs.

TDCJ is asking for an exemption from budget cuts, but I don't think that's necessary. Rather, since the agency is circling the wagons and suggesting only cuts that would harm public safety and cripple the agency operationally, the Lege will probably have to step in and set their priorities for them. This document is more ploy than plan - suggesting the unthinkable, ignoring more modest, reasonable potential cuts, then insisting the agency should not be required to share any budget-cut pain at all.

Public Defender bumper stickers

My pal Carol at Public Defender Revolution! is suggesting PD bumper sticker ideas. I like these:

Visit PD Revolution to offer more suggestions.

Roundup

These recent headlines caught my eye and may interest Grits readers:

• Critics blast informant system cloaked in secrecy, NPR
• The FBI, the justice system and your cell phone, Wall Street Journal
• Feds push for tracking cell phones, CNet News
• How many more are innocent?, Radley Balko, Reason
• Problem solving justice: How well is it working?, The Crime Report
  
• Williamson County DA smarts at minimum punishment handed down by visiting judge, Austin Statesman
• Prosecutor new US Attorney in Houston, South Texas, AP
  

On the limits of price theory as punishment theory

When debating theories of punishment, frequently one hears metaphors rooted in free-market capitalism's classical price theory, where punishment is considered the "price" for certain aberrant behavior and (theoretically) a higher price supposedly deters the unwanted behavior.

In financial circles, though, critiques of those very theories have been thrust to the center of national debates over the economic collapse and a road to recovery less reliant on bubbles and unsustainable debt loads. Former Fed Chair Alan Greenspan famously recanted from the laissez-faire worldview that animated and drove his entire career. Even 7th Circuit Judge Richard Posner, the judiciary's most radical free market advocate, has taken to reading and advocating ideas from John Maynard Keynes and frankly discussing the limits of theories of "perfect competition" based on rational action by self-interested consumers.

For those who didn't waste much of their college years, as I did, sitting in economics classes, here's the boiled down list of seldom-satisfied assumptions which must be true for classical economic theory to work (adapted from Wikipedia):

• Large Numbers of Buyers and Sellers – Oligarchies or monopolies among either producers or consumers skew results and reduce efficiency.
  
• Zero Entry/Exit Barriers – It's relatively easy to enter or exit as a business in a perfectly competitive market.
• Perfect Information - Prices and quality of products are accurately known by all consumers and producers.
• Transactions are Costless - Buyers and sellers incur no costs in making an exchange.
• Profit Maximization - Firms aim to sell where marginal costs meet marginal revenue, where they generate the most profit.
• Homogeneous Products – The characteristics of any given market good or service do not vary across suppliers.

So "perfect competition" in economic theory assumes a number of conditions are true that, in practice, frequently are not.

Often there are only a few large producers or, in the case of services provided to government, only a single consumer. Some businesses - drug companies, for example, have multi-billion startup costs for anyone who wants to directly compete with the pharmaceutical oligarchs.

"Perfect information" is the most ridiculous assumption on the list - the biggest reason for "bubbles" in the market is that nobody knows the real quality or value of investments like "derivatives," real estate, or many other products. In oligarchical settings (where there are few producers), "profit maximization" may go out the window in deference to other goals like driving competitors out of the market and maximizing market share. And deviations among products (the relative perceived quality of Honda vs. Toyota vs. Ford vs. Chrysler, for example), make the model inapplicable to many products compared to, say, agricultural commodities where, at the end of the day, wheat is wheat. (See a longer list of criticisms here.)

Viewed through this lens, free-market price theories don't even work well in most real-world consumer markets. But they apply even less so to crime and punishment, where none of these assumptions are true. According to this ill-conceived metaphor, the crime rate represents demand for illegal behavior, the "price" for which is the level of punishment. What's more, the government is the supplier not of the thing "demanded" by consumers, but of punishment (read: price), which uncouples the relationship between supply and demand beyond recognition in traditonal economic terms. Let's run through the various, flawed assumptions on punishment as price-setting in the criminal justice system.

First, while there is near-infinite demand for illegal behavior, there is a monopoly on punishment vested with the government. Moreover, "barriers to entry" are not just high but insurmountable: Private interests by law cannot mete out justice, only the government.

Debates over "innocence" show that the justice system no more enjoys "perfect information" than participants in commercial markets. And not only are transactions not "costless," it costs an increasingly large amount to bring forward and adjudicate cases.

Further, the goal of the justice system is not profit maximization, but an array of more subjective social goals - from public safety to retribution to pandering to special interests - that frequently, readily ignore cost-benefit goals. And far from a "homogenous product," punishments meted out in the justice system are, and should be, individualized to the defendant.

Finally, and most importantly, since the "price" paid by consumers of illegal behavior is mostly loss of liberty - not money - a price theory of criminal justice presents the unique situation where the supplier of justice (the government) pays, not the consumer (the defendant, for whom the "price" of punishment is set), turning economic theory on its head.

Given these flawed assumptions behind punishment as the "price" for misbehavior, it's little wonder that higher "prices" don't generate the best results in terms of reducing crime. In fact, though crime has been declining nationally in recent years, that trend appears to be disconnected with incarceration rates, or even inversely related.

Adam Gelb of the Pew Center on the States points out (pdf - p. 8) that from 1997 - 2007, Nevada, Louisiana and Minnesota all saw their crime rates decline 25%. By contrast, Nevada's incarceration rate declined 3% over the same period, Louisiana's increased by 29%, and Minnesota's increased by a staggering 60% to achieve the same result. What's more (p. 9) states that reduced their incarceration rates saw the biggest drops in crime, even though nationally incarceration rates skyrocketed over this period.

So the price theory of deterring criminals doesn't work any better for reducing crime than it does establishing the value of derivatives in the financial market. Like derivatives that had to be bailed out by the feds as "toxic assets," everyone believes the criminal justice system has value, but it's difficult to concretely define what that is and by all appearances, we've been paying to much for it, with diminishing benefit to the public from greater expenditures.

We're at the end of a three-decade long incarceration "bubble" that dwarfs that witnessed by any other society in history. Perhaps, just as folks are rethinking their reliance on free-market ideology for analyzing the economy, the criminal justice system should be rethinking its reliance on this primitive, flawed metaphor based on the same principles. After all, it's taxpayers paying the price, which it turns out is not the same thing as enduring the punishment.

RELATED:

• Debating the economic basis for punishment theory
• Why economic theory doesn't apply to plea bargain agreements

Hawaii's HOPE program reporting outstanding results

I ran across an encouraging DOJ-sponsored analysis of outcomes from the HOPE program in Hawaii - a much-praised strong probation regimen emphasizing short incarceration stints in response to probation violations. Here are the topline results. Compared to a control group:

In a one-year observation period, HOPE probationers were

• 55% less likely to be arrested for a new crime,
• 72% less likely to use drugs,
• 61% less likely to skip appointments
• 53% less likely to have their probation revoked
• As a result, they served or were sentenced to, on average, 48% fewer days of incarceration than the control group.
  

The judge who developed the HOPE program has published these benchmarks for success for practitioners, found along with the data above at the hopeprobation.org website.

RELATED:

• Hope program pilots strong probation methods for addicts without mandatory treatment
• Levin urges Corrections Committee to mimic Hawaii's HOPE program

Stuff to read by other folks

Check out some excellent recent posts at these sites I've been perusing this morning:

• Texas Prison Bidness
• Defending People
• California Corrections Crisis
• Governing Through Crime
• Sustainable Prisons Project (see especially the posts on beekeeping)
• Rethinking Reentry
• Pardon Power
  
• The Crime Report
  

Also, the November Coalition has been regularly updating its web page on "Snitching," including a great deal of recent coverage.

Reduced training for DPS troopers

Texas DPS troopers will now receive 1/3 less training than in the past before being deployed onto the streets, the Houston Chronicle reported this week:

Steve McCraw, director of the Texas Department of Public Safety, said reducing the length of academy training will shave costs, increase recruitment and lead to more frequent classes.

“We can provide superior training at less cost, in less time, and it's far easier for us to recruit,“ said McCraw, adding many recruits will not commit to a training course lasting more than 7 months. “We determined we can be much more competitive in recruiting, in college and the military, in an 18-week school and one that's not done just once or twice a year.”

McCraw recently persuaded the DPS governing board to trim the existing 27-week training course to 18 weeks, a move he hopes will help the state police find enough applicants to fill nearly 400 vacancies. He said much of the training that was removed related to gaining an intermediate police officer rating, one which also requires six years of experience.

The Public Safety Commission also approved an eight-week school for certified peace officers who want to join the DPS, McCraw said.

While I understand their reasons for doing it, honestly it's absurd to say, as Director McCraw declared, that reducing the amount of academy time will provide "superior" training. Unless the DPS training academy staff are flat-out incompetent and were wasting everyone's time under the old regime, less training simply means DPS troopers will be less well trained. Similarly, reducing training requirements for transfers from local departments assumes those locals did a good job training their cops in the first place. Hopefully that's true, because DPS will no longer require as much additional training as a backstop.

A friend who emailed this story to me asked if there was cause for concern at reducing trooper training. I replied thusly:

Basically DPS used to get the creme de la creme among officers, but now cops in Austin and other jurisdictions make substantially more money, plus troopers must take turns being assigned to the border for long periods, which is boring, pointless duty they all hate because they must live for long stretches far away from home. So given less money, relatively poor working conditions, etc., fewer quality officers want to go there.

That means DPS has two choices: Pay more money or hire less qualified, less committed people who receive less training (which is also quite expensive). They've obviously chosen the latter.

For my entire lifetime, DPS troopers were considered the elite of Texas law enforcement - better trained, better paid, and more professional than local police and Sheriff's departments. However, between underinvestment in trooper pay and radically reduced training for new recruits, we're probably witnessing the end of that era.

Tidbits from TDCJ board meeting

A couple of items came up at yesterday's Texas Board of Criminal Justice meeting that may interest Grits readers:

Understaffing problems alleviated
The economic downturn has apparently made TDCJ guard jobs more attractive. Executive Director Brad Livingston reported that as of January 31, TDCJ had just 512 vacancies among correctional officer slots, down from around 4,000 vacancies in fall of 2007. Livingston said the agency was in its best shape regarding staffing in more than a decade.

New notification procedures for banned books
Also, the board approved for publication in the Texas Register amendments to inmate correspondence rules to comply with a new law (HB 3649) allowing authorized certain volunteer organizations to send inmates books. Also, the rule will require that both the sender and intended recipient of any material banned as inappropriate will be notified of the denial and procedures for appeal.

Harris judicial races getting thorough blog coverage

IMO the blogosphere is at its best when folks focus on a particular niche and provide much more detail than the mainstream media or other available outlets on the issues of the day, so I've been pleased to see Houston bloggers Charles Kuffner, David Jennings, and Murray Newman covering Harris County judicial elections, providing more depth and attention than other local media and helping generate conversations about races that rarely receive much attention. Bully for them! Search around these blogs for the Harris County judicial races in which you're interested. Charles and David are publishing responses to standardized candidate surveys they sent out to Democratic and Republican candidates, respectively, while Murray is giving a more personal perspective on the candidates.

Houston's a big town, so it's unsurprising they'd be the first in Texas to generate that level of bloggerly coverage of (usually ignored) local elections, but what they're doing provides a model that I hope will spread. It's an incredibly useful voter service.

Rethinking probation as primary punishment

Beaumont probation director Jim Stott offered this optimistic wish in Grits' comments to this post: "I hope that one day, we can effectively argue that prison is the alternative, not probation." That's an at-once ambitious and also a rather pedestrian goal - one that certainly should be achievable if the Texas Legislature continues to focus on the problem.

Probation is already the sentence a majority of adult felony offenders receive, but the adult system is still heavily reliant on incarceration compared to the juvenile courts, where fewer than 2% of convicted juveniles are sent to TYC - a ratio of 50-1 probation/prison. By contrast, the same ratio for adults is around 3-1. So there's a lot of room to move toward greater reliance on beefed up community supervision in the adult system.

Stott goes on to make an observation I think is too often underplayed or poo-poohed when it's raised, but which IMO really has tremendous merit:

Over the past three or four sessions we have had all kinds of legislative champions, who understand the community corrections system and are willing to focus more on treatment than retribution. As a probation official, I am pleased to see the message finally getting across. Being tough on crime is a great message, but it doesn't always mean a prison sentence. Much of the time being tough means holding people accountable and making them productive. In many cases, that is a far more severe sanction.

Many people don't believe that a probation sentence can be a "far more severe sanction" than a prison sentence, but there are many reasons why that can be true. Probation restrictions can be severe, including curfews, bans on drinking alcohol, and regular urinalysis requirements. What's more, probationers must pay significant fees, restitution and treatment costs, perform community service, and at least try to remain employed, which is collectively more than some people who wind up on probation - who may have chaotic, messed up lives to begin with - have ever personally accomplished before.

By contrast, though there's certainly an element of indignity, from another perspective jail or prison just provides "three hots and a cot" for a finite, definable period of time, living in an environment where someone else controls their schedule, activities, personal space, you name it. Such restrictions essentially infantilize the inmate instead of teaching him or her how to be responsible for themselves. For a lot of offenders, it truly is harder to be responsible for their own behavior in the free world than it is to sit out their sentence in a cell without ever doing the difficult work to change their mentality, habits, or associations.

I see this misconception frequently - the idea that probation is somehow not a "real" punishment. Mark Pryor over at DA Confidential, responding to a commenter's question regarding which offenses warrant probation vs. prison time, recently wrote:

first one needs to chalk up the purposes of the two options, probation and prison. Boiling them down to their essentials, I come up with:

Probation = rehabilitation
Prison = punishment

That's a typical framework for thinking about community supervision, but I also happen to think it's grievously flawed. He did caveat this statement by adding:

Sure, there are punitive elements to probation and one always hope for self-betterment in prison but from the stand-point of the prosecutor, those seem to be the basics. (I'd thought of adding "community safety" to the prison category but if rehabilitation is achieved, then probation gets us there, too). For a more detailed discussion of probation and its goals, look at last week's post, here.

But by undervaluing the "punitive elements to probation," I think prosecutors like Mark may come to over-rely on prison when they think "there has to be some punishment."

Whether an offender goes to prison or is sentenced to probation, the bottom line goal of their sentence from a public safety standpoint should be the same: To prevent the offender from committing more crimes. In most cases that goal is best served by supervising the offender in the community and requiring them to demonstrate they can be a functioning, productive member of society. That's something that can never be proven while sitting in a cell. Plus, the reentry period when they leave prison is the single riskiest period for recidivism - a treacherous stage in the process that probation wholly bypasses.

State Sen. John Whitmire told the Austin Statesman today that, “It’s premature now to be calling to close units, while we’re still seeing the full impact of all the diversion and treatment programs we started putting into operation in 2007.” I certainly see his point. Perhaps, though, the 2007 reforms shouldn't be viewed as the end-all be all, but the Lege could expand on that work and bolster diversion programs even further to push prison populations even lower.

When the 2007 reforms were first proposed in 2005, they were harshly attacked by Williamson County DA John Bradley and several House members (all of whom have left the Legislature, or will before next session) who complained that the changes would unleash a crime wave on the state. Not only did that not happen, though, crime continued to decline, even as thousands of offenders were diverted from prisons each year through the new programs.

Those attacks led bill sponsors to weaken the legislation and take out key provisions that would have resulted in much greater prison population reductions, according to LBB estimates. Now that we know the sky didn't fall when the first stage of probation reforms were enacted, the Lege should go back and pick up the rest of the proposals that were stripped out of the legislation in 2005.

Other strategies to safely reduce inmate numbers: Investing even further in diversion programming instead of leaving it at 2007/2009 levels. Those investments have seriously paid off and it's time the Lege upped their ante to achieve an even bigger return. I'd also like to see them seriously consider targeted sentence reductions for nonviolent offenses, starting with reducing low-level drug penalties by one offense category and indexing theft categories to inflation.

There are other creative strategies they could use to trim prison populations at the margins without harming public safety. That's a better strategy than sitting back and hoping the 2007 reforms will be enough to solve TDCJ's problems, when clearly more needs to be done.

Here and There: Briefs

Here are a few notable criminal justice stories I'd blog about individually if I had more time:

Judge: Costs for immigration prosecutions 'neither meritorious nor reasonable'
Austin District Judge Sam Sparks last week questioned the wisdom of spending money to incarcerate otherwise harmless immigrants over "illegal reentry," declaring that the practice "presents a cost to the American taxpayer ... that is neither meritorious nor reasonable." "He ordered prosecutors to be prepared to state the reasons for prosecuting such cases," reported the Statesman. Doc Berman helpfully provides a link to the order. Robbie Cooper at Urban Grounds was horrified by the development, and I reacted to his complaints in the comments at his blog.

El Paso cartel snitch at center of NPR informant feature
NPR today begins a three-part series on confidential informants with the story of a notorious case out of El Paso where a DEA snitch allegedly orchestrated multiple cartel murders.

The changing geography of Mexican violence
Speaking of Mexican cartels, Pete Guither at Drug War Rant recently pointed out that we're seeing a lot of competing messages in the media about violence in Mexico. Here are a couple of interesting-looking public policy reports from the Justice in Mexico Project out of UC San Diego that I've yet to read, one on Drug Violence in Mexico (pdf) and one on Police and Public Security in Mexico (pdf). OTOH, this week a notable media report appeared announcing that Mexico's overall murder rate has actually declined compared to a decade ago. That's because, even though drug-related killings escalated, battles between campesinos and landowners in the southern part of the country largely subsided thanks to the effectiveness of intimidation tactics and the rapid, recent urbanization of former agricultural workers. What's more, "Mexico City's homicide rate today is about on par with Los Angeles and is less than a third of that for Washington, D.C.." See an excellent "heat map" showing which parts of Mexico have the highest rates of drug violence.

Staffing, health, budgets up for discussion at TBCJ
I'm headed later today to a brief TDCJ board meeting (conveniently being held about a mile from my house), to hear the public presentations, hoping in particular to gain any hints about what the agency might suggest in response to demands by state leaders for 5% budget cuts. Also, executive director Brad Livingston will report to the board on correctional officer staffing and prison health issues. See the full agenda (pdf).

Punishment, Culture and Society podcasts
I've now listened to a couple of podcasts from Jonathan Simon's lectures at UC Berkeley in a class titled, Punishment, Culture and Society, found via the blog, California Corrections Crisis, to which he contributes. Simon studied with Michel Foucault, it turns out, though I wouldn't have guessed it from his writings (which seem to more strongly exhibit other influences). I love it when university profs put their lectures online, I've run across a lot of interesting material that way over the years.

MSM acknowledges possible TX prison closures

It's not news at this point to Grits readers that state officials are considering prison closures in the face of looming budget shortfalls predicted for next year in order to protect recent diversion programs from being scrapped, but this morning the possibility was broached in the MSM by Mike Ward at the Austin Statesman, who reports ("State officials consider closing some prisons," Feb. 11):

More than a decade after expanding Texas' prison system into one of the largest in the world and growing its law-and-order reputation accordingly some state leaders are now openly discussing the possibility of what was once politically unthinkable: closing or mothballing entire prisons. ...

It's unclear whether Texas has ever closed an entire prison, though parts of two were mothballed — or temporarily closed — several years ago due to a guard shortage.

By contrast, at least 35 correctional centers in other states have been closed since the recession began in 2008 and state and county government budgets began sliding into red ink.

"Closing prisons? It's absolutely on the table," said House Corrections Committee Chairman Jim McReynolds, D-Lufkin, whose panel oversees the state-run system of lockups. "As tight as our budget situation looks, we cannot unravel the fledgling system of diversion and treatment programs that are paying big dividends now for the states. And there's only one other place to look — prison operations."

But no one is discussing freeing convicts or shuttering prisons just to save money, as other states facing budgetary red ink have done recently.

"We certainly can't compromise public safety, and I'm opposed to closing prisons just to save a buck," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, who was present for the prison-building binge of the 1990s.

"Closing prisons ought to be a result of having excess capacity that results from having diversion and treatment programs that are successful, to build new efficiencies into a system to make it work better, to be smarter about how we approach criminal justice," Whitmire said.

Some units could be closed without releasing any prisoners at all, says Ward, since Texas' system now has some 2,300 beds worth of excess capacity, a number which has been slowly but steadily rising. And unit closures at TYC are a virtual certainty:

Whitmire and McReynolds said the number of imprisoned adult Texans has been trending down for some time, and the system now has about 2,300 vacant beds. Texas' youth prison system, which five years ago housed almost 5,000 offenders, now holds less than 1,700, officials said.

Two Texas Youth Commission lockups — the West Texas State School in remote Pyote and Victory Field Correctional Academy in Vernon — are due to be closed later this year, after a third youth lockup in San Saba was shuttered and converted into an adult prison two years ago.

"If we see that this vacancy rate in the adult system is sustainable in coming years, it would only make sense to look at the most inefficient prisons, the ones that have the most constant security and operations problems," Whitmire said. "Nobody could have even thought about saying that 15 years ago."

Importantly, on Monday state agencies must submit to the Governor and legislative leaders a plan to cut 5% from corrections budgets. TDCJ, TYC and the Juvenile Probation Commission will all be generating plans, so we'll have more information on the subject next week.

UPDATE: See "Prisons chief: No prison closures in budget cut plan," in which the Statesman's Mike Ward reports:

Brad Livingston, executive director of the Texas Department of Criminal Justice, said a document to be submitted Monday to state leaders outlining a 5-percent cut in the agency’s nearly $3 billion, two-year budget “will not specifically propose closing any units.”

“Not,” he added emphatically. ...

Senate Criminal Justice Committee Chairman John Whitmire, who earlier advocated closing prisons to improve the effeciency of a system with thousands of empty beds, but not just to save money, said Livingston is right.

“It’s premature now to be calling to close units, while we’re still seeing the full impact of all the diversion and treatment programs we started putting into operation in 2007,” Whitmire said.

“But come January 2011, if we’re still seeing a downturn in prison population, then we should be looking at closing some of the old, inefficient, poorly designed units as long as it doesn’t compromise public safety.

“Strategically, that could be really smart.”

See related Grits posts:

• An 'unrepentant, hard-right conservative' was 'forced to agree' with prison diversion 'based on the facts'
  
• Correa: Preserve diversion funding, cut prisons to reduce TDCJ's budget
  
• Sugarland's Central Unit near top of possible closure list
  
• Texas' criminal justice challenge in 2010: Find solutions to coming budget crunch
  
• Might 2011 budget crunch bring TX prison closures?
• As 2011 budget crisis looms, should most expensive prison units be closed?
• 2011 Budget Blues: Close prison units to shave 2.5% at TDCJ
• Can Dewhurst budget cut goals be met by closing prison units?
• Data on TDCJ unit age and cost
• As 2011 budget crisis looms, should most expensive prison units be closed?
  
• States slashing spending costs, closing units
• Some states actually shutting down prison units
• Emptying prisons makes Wired magazine's 'Smart List'
• California's partisan prison meltdown: Why Texas didn't go there
• Good news for once: Texas among national leaders at reducing incarceration rate
• Pew: One in 22 adult Texans under control of criminal justice system

Youth crime declines as TX juvie prisons empty: What explains it?

Doug Berman at Sentencing Law & Policy pulled a fascinating fact-bite out of Marc Levin's most recent report (pdf) from the Texas Public Policy Foundation that deserves more vigorous discussion:

juvenile crime has markedly declined at the same time Texas has reduced the number of youths in state institutions by 52.9 percent. By building on these successes in a challenging budget environment, policymakers can continue delivering improved results for public safety and taxpayers.

It really is impressive to consider that the Texas Youth Commission reduced its inmate population by more than half after the sex-abuse scandal broke at the beginning of the 2007 legislative session, yet juvenile crime since then has continued its decade-long decline. Doesn't it seem remarkable that releasing half of TYC's inmates had no observable effect on juvenile crime rates? According to Levin:

After Senate Bill 103 became eff ective in June 2007 diverting misdemeanants from TYC, juvenile adjudications declined 10.3 percent from fi scal year 2008 to 2009. Similarly, fi lings to revoke probation for a new off ense or rule violation dropped 6.3 percent from 2008 to 2009. The most recent data on statewide referrals to juvenile probation shows a 4.3 percent drop from 2007 to 2008.

This seems like uncommon news - a dog that quite noticeably didn't bark, even if many people (especially anonymous TYC commenters on Grits, FWIW) predicted it would howl and bay all night. Perhaps one could argue that juvie crime was declining anyway, and would have declined more without the ex-TYCers. And of course, the overwhelming majority of adjudicated juveniles - as in, around 98% - are sent to probation or diversion programs instead of TYC. So the overall juvenile crime rate represents a lot more kids than just those released. Still, it's quite an extraordinary observation.

The strategy for reducing TYC's inmate population so rapidly was essentially a version of Texas' 2007 adult probation reforms on steroids: They invested more heavily in community supervision and chose as a matter of policy to incarcerate fewer juveniles, just on a much more radical scale and rapid timeframe than they've done in the (much larger) adult system.

Given that, I'm curious to ask you, Grits readers, these questions:

• What do you think accounts for this seemingly counterintuitive result, and what does it say about the link between incarceration and crime rates?
• Would the strategy work as well deincarcerating the adult system, closing prisons and investing savings in community supervision? If not, why not?

Let me know your opinions in the comments.

An 'unrepentant, hard-right conservative' was 'forced to agree' with prison diversion 'based on the facts'

Former House Corrections Committee Chairman Ray Allen had this to say about cutting corrections budgets in light of the coming 2011 budget crunch faced by the Texas Legislature:

That 2003 budget cutting of probation, parole and treatment programs backfired.

Yes, the cuts helped balance the budget in 2003-4, but they led to significantly expanded spending in subsequent years in the most costly category of criminal justice spending--prison beds. 2003's cuts saved nickels in that budget cycle, but forced future spending of millions.

Allen recalls that the 2003

session was brutal, and despite my objections, the legislature slashed the criminal justice budget by cutting corrections expenditures in every category other than prisons. Within a year, the prison system exceeded its capacity and began leasing beds from county jails to house a flood of new inmates. About half were sentenced with new criminal offenses, and the balance were returned to prison because Judges revoked probations at a much higher rate, often for violations which were merely technical in nature rather than for new crimes.

Offenders on probation are supervised by county probation officers whose service is funded primarily by local tax dollars with about one-third of total funding from the state. Total cost of daily supervision is about $1.50. Prisons are funded in full by state tax dollars at a cost of $35-$40 per day.

So why did the prisons fill up until they were overflowing into leased space? The answer is simple and logical: elected judges who must answer to voters were afraid that the funding cuts to probation supervision and treatment had made it too difficult for probation officers to effectively supervise their caseloads.

For the next four years, the state's new criminal justice challenge was to handle the flood of inmates pouring into expensive prison beds. This fiscal and managerial problem was further complicated by the longer sentences and reduction of parole eligibility which was written into law in 1993, and that population was aging rapidly and along with that aging came the serious and costly medical problems inherent to high-risk populations.

In 2007, faced with what seemed like a clear necessity to build even more prison beds, the legislature took a different turn, declaring that prisons are too costly for taxpayers for many classes of offenders who would be more cheaply and effectively served by drug and alcohol treatment and enhanced probation supervision. That was the policy they implemented.

After seven terms invested in studying the realities of our criminal justice system, I agreed fully with their assessment. As an unrepentant, hard-right conservative, I was not only able to agree, I was forced to agree based on the facts. Our prisons house many inmates who are little more than incorrigible animals -- criminals who should never again see the daylight of freedom. However, that is not true for thousands of inmates whose crimes were non-violent, were inspired and fueled by foolish and undisciplined substance abuse and mental health issues, and who were consigned to prison by judges who had little faith in the ability of a weakened Probation and Parole system to effectively protect the public.

Allen, who in the interest of full disclosure is a former campaign client, lauds a recent column by Ana Yañez Correa which argued for cutting prison budgets instead of community supervision. He announced that "She is absolutely right (though, certainly NOT far-right)."

Allen was among the first in the GOP to realize Texas couldn't continue to expand its number of inmates ad infinitum, and that fiscal conservatism required restraint in using public safety resources just like other functions of the state. That's something I've always appreciated about Ray, who I'm pleased to call a friend: he actually believes in the "small-government" ideology he espouses, and not just when it's politically convenient.

SAPD won't examine DNA in possible innocence cases: DA should step in

The San Antonio PD will test a handful of old rape kits found in storage out of more than 5,000 discovered, reports KENS-5 News:

For the past three months, SAPD has gone back through its 5,191 untested kits to determine which ones need to be tested.

The department discovered 57 of the reported untested kits had actually been tested but had not been updated in the department’s records.

The majority of the remaining untested kits are from cases where the suspect is known, and either no sexual assault occurred or the suspect’s DNA wasn’t needed for a conviction, SAPD said.

Plus, if a suspect is convicted of a sexual assault, the offender’s DNA information would be submitted into a database by the state, so there was no need for SAPD to test it.

Unlike many cities, over the years SAPD has kept these kits. The department said it is re-evaluating its policy on keeping old rape kits.

So after going through the kits, SAPD said it really has 121 untested rape kits.

Chief William McManus said in November that all of these stranger rape kits would be tested.

So far, 38 have been sent off to the lab. SAPD said the kits from stranger rape kits will soon be sent off as well.

It could be a year before all the results are known.

It's important to revisit unsolved stranger rapes, but there's a big gap in SAPD's proposed scope of testing. We know that "The majority of the remaining untested kits are from cases where the suspect is known, and either no sexual assault occurred or the suspect’s DNA wasn’t needed for a conviction." But that means that there are quite a few rape cases in the mix where convictions were achieved but the DNA evidence from the rape kit was never tested.

Just as Dallas did under the leadership of its District Attorney Craig Watkins, San Antonio needs to vet those old convictions to identify cases where the defendant pled "not guilty" and was convicted anyway based on eyewitness or other testimony. That's exactly the category of case that led to so many DNA exonerations in Dallas, but in SA they're not planning on testing such cases. There's a very good chance DNA evidence might exonerate some of those men, but it can't happen if nobody looks at the cases and notifies defendants there's new evidence related to their conviction.

What's more, it should be District Attorney Susan Reed leading this effort, not the police. After all, it's the DA's job to evaluate the probity of evidence as it relates to possible post-conviction claims, and to turn evidence over to the defense when it could be exculpatory. In Dallas when they discovered a similar cache of old rape kits, the DA teamed up with the Innocence Project of Texas to go through old cases, both to provide credibility and additional resources in performing the task. That would probably be the best model in Bexar County as well. It's simply not enough for the cops to look at the list on their own, ignore possible innocence cases, then announce, "Move along, nothing to see here."

RELATED: Test possible innocence cases in Bexar DNA cache

Accidents Will Happen

The title of this post is the headline to a story by Brandi Grissom at the Texas Tribune published today on the subject of errors in Texas Department of Public Safety accident reports. Here are some notable excerpts:

State troopers turned in hundreds of error-riddled accident reports in 2007 and 2008, according to an internal audit report compiled by the Texas Department of Public Safety last year.

In Hillsboro — the region with the most errors — more than two-thirds of the reports that officers filed in the first half of 2007 contained mistakes, according to the audit, which The Texas Tribune obtained through an open records request. Internal DPS auditors reviewed accident reports from troopers in 22 regions across the state. In 17 of those regions, auditors found that at least 30 percent of the accident reports that troopers submitted contained errors.

As official legal documents, there’s a lot riding on the accuracy of accident reports, which are used to help establish who was at fault in a wreck and whose insurance will shell out for damages and medical bills. Data in the reports also guides transportation policymakers’ decisions about how and where to spend millions of traffic safety dollars. ...

Major Casey Goetz of the DPS highway patrol division, who worked on some of the audits, says that many of the errors were simple, administrative mistakes. Significant errors that auditors found, he said, were corrected. Since the audit, DPS has improved trooper training, and the number of accident report errors has dropped significantly, he says. “We put some checks and balances in place to ensure that wouldn’t ever happen again,” Goetz says. ...

Goetz suggested a number of reason[s] for the high error rate. DPS, he says, hired a slew of new troopers who were inundated with new duties, including spending days at a time on border security assignments. And in some areas, he says, there were changes in local leadership that created gaps. “The troop, because of the work volume we all have, was pushing it through and saying, ‘If it’s wrong my sergeant will catch it,’” he says. “The sergeant was saying, ‘This is a good troop,’ and probably just initialing.”

As detailed in the chart below from the Tribune, error rates ranged by region from 38% to 63%, so even the "best" regions had large numbers of reports riddled with errors.

Levin on crime, costs and Texas justice

I've got a couple of Marc Levin's recent reports on my to-blog list from the Texas Public Policy Foundation's Center for Effective Justice, but in the meantime via email here's a compendium of much of his recent work on Texas crime and punishment policy:

• Texas Criminal Justice Reform: Lower Crime, Lower Cost - January 2010

By: Marc Levin

By continuing to build upon the recent initiatives that are successfully reducing both crime and incarceration rates, Texas can achieve further crime reductions and lower its corrections budget through the closure of unneeded adult and juvenile correctional facilities.

• Texas Counties Can Unlock Kids and Savings – December 2009

By: Marc Levin

Evidence from Texas cities and scholarly research increasingly indicates that communities can enhance public safety and reduce costs to taxpayers by providing alternatives that divert appropriate youths from detention, adjudication, and probation.

• Thinking Outside the Cell: Solutions for Public Safety, Victims, and Taxpayers – December 2009

By: Marc Levin

This presentation to lawmakers from across the nation highlights the growing evidence and public consensus supporting alternatives to incarceration that promote public safety, empower and restore victims, and reduce the burden on taxpayers.

• Texas Parole Reforms Lowered Crme, Costs - January 6, 2010

By: Marc Levin

This Dallas Morning News commentary discusses the substantial recent decline in crimes committed by Texas adult parolees and the policies strengthening supervision, treatment, and workforce participation of parolees that have contributed to these positive results for public safety and taxpayers. It also emphasizes the importance of building upon these reforms to continue breaking the cycle of crime.

CEJ Multimedia

• Audio of Panels on Corrections and Overcriminalization at 8^th Annual TPPF Policy Orientation for the Texas Legislature – January 14, 2010

The speakers on the corrections panel were Senate Dean & Criminal Justice Chairman John Whitmire, House Corrections Chairman Jim McReynolds, Pew Center on the States Public Safety Performance Project Director Adam Gelb, and Council of State Governments Justice Center Research Director Tony Fabelo.

The speakers on the overcriminalization panel were former U.S. Attorney General and Pennsylvania Governor Dick Thornburgh, State Representative Bill Callegari, Texas District and County Attorneys Association Governmental Relations Director Shannon Edmonds, and Cato Institute Criminal Justice Program Director Tim Lynch.

Both panels were moderated by Marc Levin. More than 700 Texas policymakers and stakeholders participated in the Policy Orientation.

You can view Mr. Gelb’s powerpoint and Rep. Callegari’s powerpoint.

• Video of Marc Levin’s Presentation to Meeting of the National Conference of State Legislatures (NCSL) Corrections and Fiscal Policy Leaders – December 9, 2009

Levin’s talk follows remarks by Dan Wilhelm, Vice President and Chief Program Officer of the Vera Institute of Justice. To see all materials from the NCSL program entitled “Budgeting for Corrections in an Era of Fiscal Restraint,” click here.

• Policy Primer: Keeping More Kids in the Community: Juvenile Justice Solutions in Texas – October 8, 2009

Audio

Video (courtesy of Time Warner Cable)

In the 81st session, Texas lawmakers used part of the savings from downsizing state youth lockups to direct $45.7 million to juvenile probation departments to enhance community-based alternatives. This TPPF luncheon program examined how departments can use these new funds to successfully reduce re-arrests and commitments to Texas Youth Commission institutions, as well as issues that should be considered in the upcoming sunset review of the state’s juvenile justice agencies. The panelists were:

* The Honorable Jerry Madden — Vice Chairman, Texas House Corrections Committee

* Michele Deitch — Adjunct Professor, LBJ School of Public Affairs

* Harvey Hetzel — Chief Juvenile Probation Officer, Harris County

* Vicki Spriggs — Executive Director, Texas Juvenile Probation Commission

Political debates on death penalty focused on innocence, not cost

Several recent death-penalty related items merit Grits readers' attention:

First, NPR's program Fresh Air yesterday aired a lengthy interview with Houston attorney David Dow, who has written a new, much-praised book titled Autobiography of an Execution, which has received wide critical praise.

Then last night, the death penalty came up as a source of disagreement in the Democratic Governor's candidate debate, reports the Dallas News:

The hourlong debate was calm, with few direct exchanges and plenty of agreement between the two candidates. But it laid bare a number of disagreements between the two that hadn't been seen before in a campaign that has seen most of the energy on the GOP side.

White opposed placing a moratorium on executions and on natural-gas drilling in urban North Texas' shale belt, while Shami said justice and public health require both.

Shami said he supports capital punishment, "if we are 110 percent certain" of guilt. But he said recent exonerations, many based on DNA testing, require a pause so that cases can be reviewed.

"We have killed lots of innocent people in the state of Texas," Shami said – a claim that hasn't been definitively proven.

White, though, said a moratorium on executions would be too broad. "That would disrespect the juries and the victims," he said.

White acknowledged the system has problems, but said it generally works pretty well. He said he rejects "one-size-fits-all" solutions in this and other parts of government.

Meanwhile, coverage of Sunday's Sarah Palin rally in Houston on behalf of Governor Rick Perry's reelection campaign revealed fault lines in one family over the GOP primary based on the Todd Willingham case. This anecdote caught my eye at the end of the story:

Judith Simon of Katy, who wore a pink "Palin Power" T-shirt, said she finds the former governor authentic. "When I listen to Sarah Palin, I hear truth and sincerity coming through her. When you're used to hearing the truth, you recognize the truth."

Simon also said she supports Perry. But her husband, James, a fellow Palin fan, said he would not back Perry because he believes Perry allowed the state to execute an innocent man.

He was referring to Cameron Todd Willingham, whom the state put to death in 2004 for starting a house fire that killed his wife and children. An arson expert found that the investigation that led to Willingham's conviction was deeply flawed.

Asked whom he would support in the primary, James Simon said, "How do I say this politely? None of your business."

His sentiments suggested that some may have turned out to support Palin more than Perry.

Of course, that's just one family, but it suggests that Sen. Kay Hutchison may have so far underplayed the Willingham arson case as a GOP primary wedge issue.

However, seldom do political debates over the death penalty reach what may be the biggest practical hurdle to wider use of capital punishment - that it simply costs taxpayers' too much to implement. According to a report last week from the Amarillo Globe-News:

More prosecutors are deciding not to seek the death penalty in cases where it's an option, two local district attorneys said after two cases in which pursuing the ultimate punishment was an option.

"That's been the trend for probably the last decade and probably will continue to be a trend," Randall County Criminal District Attorney James Farren said.

Many prosecutors weigh the lack of certainty in securing a conviction against the high cost of litigation as reasons for not seeking the death penalty when available.

In rural Gray County, reports the Globe News, the District Attorney "spent more than $750,000 - that was about 10 percent of Gray County's annual budget - to bring [a capital defendant] to trial. The cost of the trial was one reason county commissioners were forced to raise taxes and withhold employee raises last year." Another Panhandle DA observed that "many rural counties might bankrupt themselves if they try capital cases."

When Texas voters are asked by pollsters if they support the death penalty, they do so in overwhelming numbers. But I wonder if there isn't a somewhat more pedestrian question that might better gauge real-world support for capital punishment: Would you be willing to pay higher property taxes to implement the death penalty more often in your county? In Gray County that was an explicit choice faced by local prosecutors, who made a charging decision that's directly responsible for higher taxes and lower pay for county employees. I'd like to see that aspect of the issue discussed more by pols seeking our votes at all levels, but it's not how the debate is usually framed.