Just don't call it a "jail"

Harris County and City of Houston officials learned in 2007 that voters don't want an expanded jail, so this year they're calling it something else. According to coverage from The Bond Buyer (Sept. 30):

Houston Mayor Annise Parker said the ballot proposal is “fundamentally different than what was asked a few years ago, which was about adding onto the county jail. This is a joint city-county project, and the public really appreciates the fact that the city and county are working together closely.”

At this point, likely voters appear to favor the inmate processing center, according to recent polls.

“Maybe it’s because we called it a joint inmate processing center as opposed to a jail, but that’s what’s on the ballot,” said Rice University Political Science professor Bob Stein.  “And more importantly, voters support this regardless of their perception of crime.”

Stein conducted polling for Houston stations KHOU and KHUF that showed 58% of respondents in favor of building the processing center, with 21% opposed.

The 2007 proposal for the jail and processing center was defeated, largely because African-Americans voted overwhelmingly against the measure, according to analysis of those results.

“In 2013, although 58% and by margins of 64 and 61 (percent) Anglos and Hispanics support this proposed initiative, African Americans oppose it slightly, 51-49,” Stein said.  “But I think a 58% margin is good; more importantly, there are no organized groups against this. So I think, the stars are aligned for this to pass and pass by a good margin.”

Harris County Sheriff Adrian Garcia told KHOU the center would “take the City of Houston out of the jail business, quit the duplication of operations, save the taxpayers money and get cops back out on the street faster.”

The inmate processing center is one of the lower profile issues on the Nov. 5 ballot that will include the election of the Houston mayor and city council. The Houston city elections are likely to bring out more voters from within the city limits than will vote in the suburbs, officials said.

Grits has fewer reservations about the Harris County Jail expansion bonds on the November ballot than I did the 2007 bonds that Houston voters rejected. The Harris jail's overcrowding problem stems from poor decision making by judges more than a lack of capacity, but the jail's booking center does need revamping and I don't mind combining the city and county jail facilities, so long as the city cells actually close.

Still, avoiding the term "jail" on the ballot for jail bonds speaks volumes. Likely somebody polled the terms and figured out the public didn't support expanding the jail but does support processing inmates quicker, as do I. Grits just believes that goal would be better served by reducing pretrial detention, and the only option voters have for achieving that goal at the ballot box would be electing different judges.

MORE: See a Houston Chronicle editorial supporting the bonds.

Voters should approve "Sharon Keller Disciplinary Case Memorial Amendment"

The Dallas Morning News, with tongue only partially in cheek, declared that Proposition 9 on the November ballot should be called the “Texas Court of Criminal Appeals Presiding Judge Sharon Keller Disciplinary Case Memorial Amendment.” They explained, "The State Commission on Judicial Conduct reprimanded Keller with a public warning in 2010 for her actions in closing the court before a death-row inmate could file a last-minute reprieve. Keller later got a special court to dismiss that reprimand, since the Texas Constitution does not specifically say a disciplinary case could lead to a warning, although the state’s legal code does."

See Grits' analysis of the underlying issues following oral arguments in Judge Keller's case. I suppose this was necessary at some level, but the Judicial Conduct Commission had ample authority to reprimand Keller legally, just not the cojones. Like the Ethics Commission, the Judicial Conduct Commission was seeking any excuse to reduce the penalty while acknowledging Keller's violations and ended up doing so in a ham-handed way that breached their constitutional authority. Still, as the Austin Chronicle noted, the amendment "would remove a disincentive to the conduct of open proceedings" and by that reasoning alone it deserves passage.

Online money laundering: Tricks of the trade

Via the MIT Technology Review, I was interested to run across this United Nations analysis (pdf) of online money laundering. Some of these methods I'd heard of - including the use of export goods and employment forums to launder drug money -  but the manipulation of multiplayer online gaming communities Grits had admittedly never considered. Here's a notable excerpt from the MIT Tech Review:

A common approach until recently was to use the Costa Rican digital currency service called Liberty Reserve. This converted dollars or Euros into a digital currency called Liberty Reserve dollars or Liberty Reserve Euros, which could then be sent and received anonymously — one of the few services to allow this. The receiver can then convert the Liberty Reserve currency back into cash for a small fee.

In May this year, however, the US authorities shut down the service and charged its founder and various others with money laundering.

But Richet says the closure of Liberty Reserve is unlikely to end these practices because there so many alternatives. These include WebMoney, Bitcoins, Paymer, PerfectMoney and so on.

Another increasingly common way of laundering money is to use online gaming. In a growing number of online games, it is possible to convert money from the real world into virtual goods services or cash that can later be converted back into the real thing.  “Popular games for this type of scam include Second Life and World of Warcraft,” says Richet.

Then there are the money mule scams. Most people will be familiar with the spam in which a high level official from a developing country asks your help to transfer significant amounts of money and are prepared to pay well for your services. But first, they require your banking details which they promptly use to empty your account and then disappear.

In a growing number of cases, however, the criminals do actually transfer large amounts of money into your account and then ask you to forward it. However, since this involves stolen funds that are being laundered, you are accountable for the crime.

Another scam is to offer people jobs in which they can make a substantial income working from home. However, the ‘job’ involves accepting money transfers into their accounts and then passing these funds on to an account set up by the employer. In other words, money laundering!

For those with any professional interest in the subject, the full 19-page report (pdf) is worth a read.

California's Jerry Brown vetoes legislation similar to Texas' warrant-for-email bill

California Governor Jerry Brown vetoed legislation similar to a bill passed here in Texas last spring requiring law enforcement to secure a search warrant to access cloud-based emails. Rick Perry, by contrast, signed Texas' Tea-Party backed legislation on the same topic.

Gov. Brown also vetoed legislation reducing penalties for low-level drug possession aimed at complying with a federal court order to reduce prison overcrowding. This despite a poll last year that found "62 percent of Californians agree that the penalty for possessing a small amount of illegal drugs for personal use should be reduced to a misdemeanor."

Arguably, conservatives seeking a less-government, liberty-minded approach to criminal justice should just look at what Jerry Brown does and do the opposite.

Police officer "victim" shoots man standing at distance with hands at his side

Here's a case out of Dallas that shows why police body cameras would be a great idea ("Video shows Dallas officer shooting man standing with arms at his side" (Oct. 17):

Family and friends of a mentally ill Rylie man want answers after a Dallas police officer shot him for no apparent reason Monday in broad daylight outside his home.

A police report says that Officer Cardan Spencer fired on Bobby Gerald Bennett, 52, after Bennett walked toward him and his partner with a “knife raised in an aggressive manner.”

But a neighbor’s video surveillance camera recording obtained by WFAA-TV (Channel 8) shows something different: It shows Bennett, who was seated in a chair, initially rolling back from officers as they advance on him. Bennett then stands up but does not move. His hands remain at his side and he is standing still when Spencer shoots him, firing his service weapon four times.

Normally, when officers claim a suspect approached them with a “knife raised in an aggressive manner,” that's the end of the story. Their word will be taken over any and all other witnesses. In this case, luckily, a neighbor's surveillance camera captured the episode. There was another officer on the scene. It'll be interesting down the line to see if his written report jibed with the video or the shooter's version. My guess would be the latter, assuming it was written before police knew the video existed.  Body cams would protect officers from false accusations and simultaneously provide documentation when their training and judgment fail them, as clearly happened here. Video serves as a general prophylactic for testilying and an antidote to post hoc confusion about what happened in the heat of the moment.

The episode also demonstrates the need for specialized police units to handle calls dealing with the mentally ill. The justice system too often serves as the front-line response to mental health crises, putting police in situations they don't understand and aren't trained to handle. That doesn't excuse what happened here, however I do empathize with officers confronting a mentally ill man with a knife.

Still, given the video, it's strikingly absurd that the arrest warrant affidavit lists Officer Spencer as the "victim." That's certainly not how it looked from a camera's-eye view. Dallas Police Chief David Brown has since ordered that aggravated assault charges be dropped. Go here to see the video (which irritatingly includes unrelated ads before and after the clip).

Climate-controlled hog barns spurred union participation in prisoner heat suit

Though the article didn't mention Grits, a Wall Street Journal report today ("Extreme heat tests prisons") credited a meme first articulated on this blog - that TDCJ is constructing climate-controlled facilities for its hogs while most prison units are left to bake in the summer sun - with the unprecedented decision of the state's leading prison-guard union to support an inmate lawsuit over excessive heat and oppressive working/living conditions.

Union officials said corrections officers have complained to Texas prison officials that the heat index inside facilities is often as high as 130 degrees Fahrenheit, but haven't been able to persuade them to make changes. They said they were driven to speak out after learning that the state spent $750,000 in June to buy six new barns with exhaust fans and misters to cool pigs raised for inmate consumption.

"We don't keep our animals in these type of conditions and that speaks volumes," said Lance Lowry, who worked as a corrections officer for 13 years and is now president of the Hunstville, Texas-based local of the American Federation of State County and Municipal Employees Union, which represents many state prison workers.

At least five other states currently face litigation over un-air-conditioned prisons, the paper said, but Texas is the only one where prison guards have lept into the fray. The Journal added some context from other jurisdictions:

Suits in other states have led to settlements and changes in recent years. In 2004, Wisconsin agreed to install air conditioning in the state's most-secure prison—a so-called Supermax—after a federal appeals court upheld a lower court's ruling that the prison had to maintain safe temperatures.

After a similar court finding in 2010, Arizona's Maricopa County Jail began housing mentally ill inmates on psychotropic drugs, which interfere with a body's ability to regulate temperature, in areas cooled to a maximum of 85 degrees. A separate suit on behalf of mentally ill patients in the Arizona Department of Corrections is pending. Arizona's prisons have air conditioning or evaporative coolers, said Doug Nick, a spokesman for the state's prison agency.

The paper added that:

In Texas, state law requires county jails to keep temperatures between 65 and 85 degrees. "They house pretrial detainees who have not yet lost certain rights," said Brandon Wood, executive director of the Texas Commission on Jail Standards. But similar requirements don't exist for state prisons. ...

In the last fiscal year in Texas ended Aug. 31, 55 corrections officers reported getting sick from heat, down from 92 the previous year, according to the state. At least 14 inmates have died from heat-related causes in the past six years, according to court records in the wrongful-death suits."

Former TDCJ-PIO: Agency 'suffers from intellectual incest'

After the Texas Department of Criminal Justice ran their Public Information Officer (PIO) Michelle Lyons out of her post, they briefly hired John Hurt, who was in charge of media relations at the Texas Department of Transportation for 20 years, to fill the slot. He was there for about ten minutes then suddenly Jason Clark, an internal hire, had the job. Duane Stuart at The Backgate Website caught up with Mr. Hurt and asked him why he left TDCJ. Here's how he responded:

"My last interview was with Time magazine about the expiring execution drugs. When they found out, they positively came unglued that I did what I was getting paid for. They even admitted the interview read well, they just didn't want the issue in the media. They just wanted to keep issues like the CO shortage and the outdated execution drugs as far out of the media as possible."  Mr. Hurt went on to explain, "The admin suffers from intellectual incest. They all live in a little town, went to the same little college in Huntsville and are terrified of new ideas." Mr. Hurt then offered his ideas on how to change the face of the public information office and the agency in general. "Moving the agency to Austin would be in everyone's best interest." "I tried to show them how to position themselves in a positive light and they didn't want any part of it. I've never worked in a stranger place."

Sounds about right. Now, of course, we know they didn't want the execution drug issue in the media because they'd conspired with a now-recalcitrant pharmacist to secure the drugs on the "down low," as he put it.

That said, I'm not sure moving them to Austin would help, though it's possible. Lately, Grits has come to consider both the TDCJ and Department of Public Safety PIOs basically worthless, and DPS headquarters are in the capital. To get any useful information out of either of those agencies these days requires an open records request, even for routine, workaday stuff that a few years ago would have been routinely disclosed by their media relations folks without going through that formal process. So I'm not surprised by Mr. Hurt's comments, but I'm glad he was willing to offer them publicly.

MORE: From The Dallas Observer.

Odds and ends: Guilt, innocence, bullying, forgiveness, and drug-war follies

Here are a few odds and ends that caught Grits' attention this week but didn't make it into independent blog posts:

Houston cop pleads guilty to on-duty rape after traffic accident
Ugliest police misconduct story I've read in a while. The cop received a ten-year sentence and will then spend 20 years on the sex-offender registry. His attorney "was hopeful his client will be paroled in two to three years. [former Ofc. Adan] Carranza could also be freed after six months if the judge agrees to 'shock probation,' which is sometimes used to scare first offenders straight without making them serve their entire sentence." That's certainly less than you or I'd have gotten, one imagines, had a civilian committed a rape caught on videotape.

More on whether anti-bullying programs are counterproductive
Grits had earlier cited initial news reports about research claiming anti-bullying programs may increase instead of decrease student victimization. Here's a link to the actual study.

Never too late?
Texas' longest-serving inmate - paroled after 64 years at age 85 - wants the courts to revisit his case, claiming the jury was "rigged.

Waco judges seek to stem costly jail overcrowding, clean up DA's mess
In Waco, District Attorney Abel Reyna has created a massive pileup in the county jail by insisting on such long sentences in routine cases that many defendants choose simply to take their cases to trial. The result: county jail cost overruns are causing property tax hikes with no end in sight. Now, local judges may address the issue by shifting civil judges to preside over trials in the criminal courts, reported the Waco Tribune Herald (Sept. 25). The county has also eliminated Friday "announcement dockets" which "were implemented so a defense attorney and a prosecutor could meet and plan the course of a case, whether setting a trial date or offering a plea deal." Going forward:

The lawyers now will meet throughout the week and turn in a form to the presiding judge indicating the offers that were made, Reyna said. ...

If defense attorneys fail to turn in the forms more than three times, they are taken off of the court-appointed attorney list, Reyna said.

Though the paper had Reyna announcing it, surely only judges could remove defense counsel from the appointment list. Reyna should thank his lucky stars the judges are trying to cover his rear since it's DA's office policies causing all of this. Frankly, I doubt it will be enough.

Ted Cruz 'favors very, very harsh penalties for stealing calculators'
Newsweek had a piece titled "Eight Things You Don't Know About Ted Cruz" which included this criminal-justice related tidbit about Texas' junior senator:

Cruz doesn't talk much about the case of Michael Haley, erroneously sentenced to 14 years in prison for stealing a calculator from Walmart when the maximum sentence was two years. Acknowledging the longer sentence was an error, Cruz nevertheless argued before the Supreme Court that Haley should serve the full 14 years, a position that prompted Justice John Paul Stevens to wonder whether the "state has forgotten its overriding 'obligation to serve the cause of justice.' " The court sent the case back to the lower court, which freed Haley.

Pardon my skepticism: Column pushes Willingham clemency application
Barry Scheck of the national Innocence Project and Texas exoneree Michael Morton had a column in the Houston Chronicle yesterday arguing for the governor to posthumously pardon Todd Willingham based on new evidence of alleged prosecutorial misconduct as well as the debunked arson testimony in his case.  Though I personally believe Willingham did not intentionally kill his children, at this point I think they'd have a better shot convincing Rick Perry to endorse Wendy Davis than to pardon a man he's publicly derided as a "monster." In the meantime, nobody ever seems to want to talk about the scores of other worthy, still-living pardon applicants who're routinely rejected - even after favorable recommendations from the Board of Pardons and Paroles - and almost never garner media attention.

Journalist seeks first-hand jail experience
A San Antonio Express News reporter spent the night in the Bexar county jail to give readers an idea of the experience. My favorite line: "Ventilation doesn’t seem to be a major concern here, and holding cells can smell like caged animals reeking of desperation, anger and vomit." Texas Monthly's Dan Solomon questions whether her experience was typical, her depiction accurate, or her recommendations useful. Answer in each case: Sort of.

Drug war a failure, says paper, but only lame solutions offered
The McAllen Monitor editorial board opined that the US drug war is an abject failure. The article concludes:

A team of U.S. and Canadian researchers, using government data, found that from 1990 to 2007, the average price of marijuana, cocaine and heroin decreased by at least 80 percent, when adjusted for inflation.

Basic economics tells us lower prices mean the supply has gone up or the demand has gone down.

And it isn’t the latter. One former Mexican intelligence official said that the number of marijuana users in the United States has increased from 14.5 million in 2007 to nearly 19 million last year.

U.S. Drug Enforcement Administration seizures increased by 465 percent for marijuana from 1990 to 2010 and by 29 percent for heroin, according to a recent report by BMJ Open, an online publication of the British Medical Journal. It also found that drugs have gotten stronger during later years.

Many global leaders say it’s time to accept defeat and stop the interdiction efforts that have cost us billions in lost dollars and millions of lives lost. Some want decriminalization of drugs.

We’re not advocating for that, but a shift in funds toward more treatment would be a humane strategy that might help reduce demand and incarceration rates.

The evidence shows U.S. officials are losing the current drug war.

Kind of a wimpy prescription after such a bold prognosis. More treatment resources would be a good thing but it won't mean much without addressing overcriminalization of drug possession.

"The 'invisible' crisis of correctional health care"
Good piece on the topic from The Crime Report. While care inside is often sub-par, one expert also lamented that, “There are significant health-related barriers to people returning home from prison ... Often there is no discharge planning and short or no amounts of necessary medications upon release.”

Anthony Graves gives back
Kudos to Texas exoneree Anthony Graves for establishing a legal scholarship in the name of the attorney who sprung him. See Texas Monthly's report. And the people cheered:

SCOTX issues new rules on prosecutor misconduct

The Texas Supreme Court has upgraded its rules regarding prosecutorial misconduct in response to state Sen. John Whitmire's legislation this spring, clarifying that prosecutors may be punished in older cases (like Judge Ken Anderson in the Michael Morton case) where "fraudulent concealment" of probative evidence resulted in a wrongful conviction. See the new rules here.

MORE (Oct. 18): Rep. Ruth-Jones McLendon issued a press release about the new rules which I've appended in full below the jump.

Confronting 'myths' about conservatism and criminal justice reform

Vikrant Reddy at the Texas Public Policy Foundation had a column recently at Fox News addressing "Three myths about conservatives and criminal justice." With his permission, I've reprinted the article in full below the jump, followed by a few of my own observations in response to Doug Berman's critique of the piece.

IRS auditing entrepreneurial Texas jails that improperly used tax-exempt bonds

Finally, the IRS has begun to dig into shady Texas jail schemes where publicly backed bonds were used to enrich private companies, socializing risk while privatizing potential profits. Purchasers of those bonds may soon be on the hook for taxes on their earnings and counties could see their own bond ratings reduced. Turns out, the whole idea of filling entrepreneurial jails with federal inmates should never have qualified for issuance of tax-exempt bonds in the first place.

According to The Bond Buyer (Oct. 17, behind paywall, though you can sign up for a two week trial subscription), "Roughly $23 million of tax-exempt senior lien revenue bonds issued in 2003 to finance a jail may be taxable private activity bonds, an Internal Revenue Service agent has told the West Texas Detention Facility Corp." in Hudspeth County. And they're not the only one:

The jail bond deal is the latest of dozens under audit where the IRS has suggested that significant amounts of federal inmates paid for by the federal government and management contracts with private parties make the bonds taxable private-activity bonds.

Tax-exempt bonds are private-activity bonds if more than 10% of the proceeds are for private use and more than 10% of the payments for debt service are from private parties. Under federal tax laws and rules, the federal government is considered a nongovernmental or private entity. PABs are only tax-exempt if they are issued for a “qualified” purpose, and a jail is not one of these.

For example, in August (8/23), The Bond Buyer reported that:

Bond counsel Jackson Walker LLP, based in Houston, has tentatively agreed to pay $400,000 to settle a tax dispute between Crystal City Public Facility Corp. in Texas and the Internal Revenue Service over $13.94 million of revenue bonds issued to finance prison facilities. The bonds were issued in 2003, but have been under scrutiny by the IRS since 2010 and in default since last year when the U.S. Marshal withdrew inmates because misconduct and security problems, forcing the facilities to close in May 2012 for repairs and improvements.

Their liability would have been greater if they'd succeeded in getting enough federal inmates to pay the bills.

The IRS’ concerns were two-fold, according to bond-related documents. First the IRS took issue with the management contract the city had with BRG, under which the net profits were split between the two. The IRS argued this compensation structure suggested “an equity interest in the operation of the bond-financed facility,” creating a private use and payments problem.

In addition, the IRS claimed the prison had too many federal inmates. Federal inmates are considered private, not public, parties under the tax law. The IRS contended that the economics of the prison would not work without substantial federal, and therefore private, use and payments. The federal government tends to pay more for incarceration of its inmates that state or local governments.

The only reason the Crystal City jail wasn't dinged harder was that the federal inmates never materialized. If they had, "Normally that would cause a problem, but since the bonds are in default, bondholders have not been receiving any tax-exempt interest that the IRS could declare taxable."

Another facility in Burnet County did find federal inmates to fill their extra beds, but as a result may now lose the bonds' tax-exempt status, The Bond Buyer reported Aug. 8:

This week, U.S. Bank N.A. filed event notices for two separate issuers that financed jails saying the IRS had indicated the tax-exempt bonds or COPs were not tax-exempt. The bank was trustee for both sets of bonds.

One notice said the Burnet County, Tex., Public Facility Corp. has received four letters from the IRS, the first on Dec. 12, 2011 and the most recent on April 12 of this year, seeking information about $35.38 million of project revenue bonds that were issued in 2008 to build a jail.

The bank said that, in the most recent IRS letter, the issuer was asked to provide information “regarding a preliminary conclusion by the IRS that the ... bonds ... violate certain Internal Revenue Code rules that cause [them] to be taxable.” The notice said the issuer is cooperating with the IRS and that “it is unknown at this time what the outcome of the IRS examination will be.”

Bill Neve, president of the Burnet County Public Facility Corp., said the county built the 586-bed jail to hold county prisoners but provided for some extra space so it wouldn’t have to expand the jail during the next 20 years or so. The IRS is concerned about the number of federal prisoners in the jail, many of whom were housed for less than 100 days, he said.

The PAB rules contain an exception for short-term private use and define that to be less than 100 days. But Neve and other sources indicated that if the IRS thinks there is a significant number of federal inmates, it does not take that exemption into account.

In yet another instance down in Willacy County, The Bond Buyer reported Aug. 28th that the bond terms actually contemplated the possibility that the tax-exemption would be disallowed, showing they knew up front this was a dicey deal:

Bonds issued for Willacy County, Texas’s $7 million jail in the town of Raymondville are among several being audited by the Internal Revenue Service to determine whether its bonds should lose their tax exemption, according to County Judge John F. Gonzales.

Gonzales disclosed the audit at a meeting of the Willacy County Commissioners Court earlier this month, according to the Valley Morning Star of Harlingen.

The south Texas county, which has invested heavily in the prison industry, has a large stake in the tax-exempt status of the prisons. The county seat of Raymondville has earned the nickname “Prisonville” because of its heavy concentration of private lockups, most housing federal inmates on immigration violations.

Refinancing the $3 million of outstanding bonds as taxable would cost the county about $200,000, Gonzales said. The jail was built using 2004 bonds bearing 7.5% coupons on maturities of 2029 with yields of 7.75%, according to the Municipal Securities Rulemaking Board’s Emma Web site.

The original $7.65 million of unrated bonds were issued in the name of the County Jail Public Facility Corp. of Willacy County. ...

According to the official statement for the 2004 deal, interest rates would rise to 140% of the original issue rate if the deal were found to be taxable, or the issuer could redeem the tax-exempt bonds at a price equal to 105% of principal, plus accrued interest.

For barely populated Willacy County, it should be noted, $200K is real money.

The facility in Jones County that the Legislature refused to bail out last spring was another example of a failed "public-private partnership" whose bonds would lose their tax exemption if it were filled with federal inmates. The Bond Buyer reported May 2: 

The prison was pitched as an economic stimulus measure that would provide 200 jobs and annual economic impact of $5 million.  County commissioners promised county taxpayers that the for-profit prison would rely on lease payments from the state and never require local tax support. ...

The bonds used to build the prison carried junk ratings of BB from Standard & Poor’s.  Original coupons ranged from 7.25% to 9%. That rating fell to D when the default occurred. ...

The bonds were issued by the Midwest Public Facility Corp., a conduit issuer overseen by the county commissioners.  The bonds were issued as tax-exempt debt.  The issuer failed to make its $2.23 million interest and principal payment due on Oct. 1, 2011.

Meanwhile, The Bond Buyer reported Aug. 16, "Zapata County, Texas, may pay a settlement or refund bonds after an audit of $9.97 million of its debt by the Internal Revenue Service."

Lots of Texas counties have entered into these sorts of entrepreneurial jail deals and many of them have gone bust because federal inmates they counted on to pay the bills never materialized. These stories, though, show these were ill-considered and likely illegal schemes from the get-go - even if they "worked" and federal inmates were found to cover costs. Many Texas counties, like McLennan (Waco), already have had to raise taxes to cover costs for empty, never-should-have-been-built lockups. Now, it's clear their problems won't subside even if those much-touted federal inmates ever do arrive.

Rare coverage of Court of Criminal Appeals races out of Longview

Grits has long considered the Longview News-Journal one of if not the best small-town newspaper in the state, so I'm pleased but unsurprised that they're the only media outlet profiling candidates for the Texas Court of Criminal Appeals. Three of the nine seats on the court will be open in next year's elections and multiple candidates have announced for each of them. So far, reporter Glenn Evans has interviewed Jani Jo Wood, Barbara Walther, and W.C. "Bud" Kirkendall. One hopes they'll round out the rest before next spring's primaries. Nobody else seems to be paying attention.

Though more candidates could still jump in before the deadline, of those who've announced so far, Grits presently plans to vote for Judge Bert Richardson out of San Antonio against Walther and Jani Wood from Houston over her opponent, SA appellate prosecutor Kevin Yeary. I don't see how liberty-minded voters could support either of the candidates who've announced for the seat currently held by Judge Cathy Cochran - Kirkendall and Harris County prosecutor David Newell. The less-government crowd still needs a horse in that race.

Though I greatly appreciate their coverage, Grits had some choice words in the comments for Walther's self-serving characterization of her most infamous case - the Great Eldorado Polygamist Roundup. She fibbed that her rulings in that episode were "upheld," but in reality the Third Court of Appeals said she abused her discretion. After her egregious decision to order the seizure of more than 400 kids because of their parents' religious beliefs, I consider Judge Walther a terrible embarrassment. At one point Grits openly wondered if she were the worst judge in Texas. That's still an open question (though there are surely other contenders). Elevating her to the high court would be a disaster and a disgrace

RELATED: Dearth of small-government candidates in Court of Criminal Appeals races, and High-court watching: When the right-hand shoulder becomes the middle of the road.

News flash: Using county jails to score political points on immigration costly to taxpayers

Counties are spending millions to house undocumented immigrants in local jails, reported the Texas Tribune's Brandi Grissom yesterday, but the story regrettably failed to make clear that much of that cost is volitional, not the result of a federal mandate. "Texas county jails spent more than $156.6 million housing more than 131,000 undocumented immigrants with federal detainers between October 2011 and September 2013, according to state jail commission data," said Grissom's lede. (Here's the actual report from the Commission on Jail Standards showing county-level details.)

Some of that would have been spent anyway for housing serious offenders awaiting trial, but the so-called Secure Communities program allows counties to seek detainers locking up even low-level traffic offenders and petty misdemeanants who would otherwise be released on low bail or personal bonds. An Austin Statesman analysis back in 2012 found that, "in Travis County, twice as many people have been deported after a misdemeanor arrest in recent years than have been deported after a felony arrest." At the time, Grits responded to the Statesman story with this analysis:

This is a great example why immigration enforcement is one of the last remaining hopes of private-prison interests that incarceration rates might continue to increase. Secure Communities is one of the few recent drivers of increased incarceration in an era when Texas county jails have otherwise experienced population declines, just as immigration detainees are the largest growth sector among federal prisoners. Thus, as is so often the case (see: mental health issues for another example), the program amounts to the state using the criminal justice system as a substitute for rationalizing policies overall - in this case, once and for all implementing immigration reform. Who gets a traffic ticket is a stupid way to choose who may get deported. The process should be a bit more thoughtful and less random than that.

In Grissom's story, Sen. Tommy Williams said he passed legislation mandating the data gathering to pressure the feds to reimburse the state. But IMO there's little justification for the feds reimbursing incarceration costs for a) serious offenders who'd be jailed awaiting trial anyway or b) low-level offenders who would otherwise be released on bond or, in the case of Class C violators, merely given a ticket. The Obama Administration last year clarified that many if not most of these detainers are not actually required by the feds. Even so, Texas pols have been falling over themselves to demonstrate how anti-immigrant they are - witness the Lt. Governor's race where the big issue has become taking away educational opportunities for children of undocumented immigrants who grew up attending Texas schools. Similarly, some county officials have become overzealous, using the Secure Communities program at the jail to shore up their nativist credentials. That's their choice, not the Obama Administration's.

Grits believes local taxpayers should pay for the consequences of politically driven, spendthrift decisions by county officials. Indeed, I wonder if at some point this newly required reporting may backfire. Will there be a Sheriff's race soon where an incumbent faces blowback from voters because overuse of immigration detainers caused tax increases to pay for jail costs? It wouldn't shock me. Which do GOP primary voters dislike more: Higher taxes or undocumented immigrants who contribute billions to the economy? Judging by the Lite Guv's race, candidates' polling must be telling them primary voters presently disdain the latter more than the former. But there's a tension between the desire for low taxes and this penchant for Big Government Conservatism and I won't be surprised if, at some point in the near future - perhaps starting with the business community, who have the most to lose from deporting workers and customers who pose no serious threat - those priorities shift.

Ruby Session, R.I.P.

Grits offers heartfelt condolences to the family of Ruby Cole Session, whose son Timothy Cole died in a Texas prison after his wrongful rape conviction before he was posthumously pardoned by Gov. Rick Perry. Ruby passed away last Thursday. Ruby's son, Cory Session, is a colleague of mine at the Innocence Project of Texas. The Texas Legislature created the Timothy Cole Advisory Panel on Wrongful Convictions named after her son and has implemented five of the six major recommendations made by that group. From AP:

Ruby Cole Session, whose son was wrongly convicted and prompted her campaign to win landmark legislation in Texas, has died. She was 77.

Session lobbied Gov. Rick Perry to sign the Tim Cole Act, named for her son who was convicted of a 1985 rape and died in prison in 1999. The legislation compensates those who are wrongly convicted and spurred other reforms meant to reverse wrongful imprisonments.

DNA results prompted Perry to pardon Cole in 2010. Another man confessed to the rape of a Texas Tech student.

Session was honored earlier this year in the Texas Senate for her achievements as a criminal justice reformer and "fierce champion of the wrongly accused."

Son Cory Session says his mother died Thursday at her Fort Worth home of an aneurysm.

Her memorial service will take place on Saturday in Fort Worth. It's great that she lived to see her son exonerated and to witness the state seeking to reform the justice system in response to his and other DNA exoneration cases. The New Yorker will soon publish a feature on the Tim Cole case and its impact on the Texas justice system (Grits was interviewed for the story in August), not the least of which was the passage of the nation's most generous compensation package for Texas exonerees - legislation that also bore Tim Cole's name. Ruby's passing will make for an unhappy postscript to what otherwise has been an inspiring and triumphant tale of a family seeking posthumous justice for their wrongfully convicted loved one. She will be missed. I know she was proud that she and Cory could so effectively carry on Tim's legacy.

Immigration courts, asset forfeiture, federal public defenders impacted by US government shutdown

I'd been thinking that the federal shutdown would have little effect on the criminal justice system because the criminal courts were exempted and it would be awhile before the shutdown would begin to impact federal grants. But this item from the Associated Press reminds me that the civil courts have been dramatically scaled back, which affects both immigration and federal asset forfeiture cases. Here are a few highlights:

The government shutdown is slowing the wheels of justice in federal courts by delaying civil cases, forcing prosecutors to operate with skeleton staffs and raising uncertainty about the system's immediate future if the stalemate continues past Thursday.

That's when federal courts officials expect the reserve funds they have been using since the Oct. 1 start of the shutdown will run out.

Criminal cases, which are required by law to go to a speedy trial, are still moving ahead, as are most bankruptcy cases and appeals. Civil cases and those in immigration court, however, are feeling the greatest impact from the shutdown. ...

Prosecutors, staff and experts from other federal agencies such as the Fish and Wildlife Service and the Drug Enforcement Agency needed to help try civil cases have been furloughed. U.S. attorneys requested judges to temporarily set aside some cases, while a few districts have requested a blanket halt to all civil cases.

In Los Angeles, 51 federal prosecutors and nearly 50 staff working civil cases have been sent home, leaving the Justice Department to file stay requests as deadlines approach. Some requests have been granted, others denied, U.S. Attorney André Birotte Jr. said. ...

Federal public defenders also are feeling the crunch, deferring an increasing number of cases to private attorneys — a practice that had already been in the rise due to cuts from the automatic budget cuts earlier this year.

But the fund to pay those attorneys ran out in September and the shutdown has made the situation worse, Hall said.

What a cluster f*%k. MORE: From the Austin Statesman.

Steve Stockman, states' rights and marijuana

In the wake of a recent poll showing the majority of Texans and half of Republicans favor marijuana legalization, Texas GOP Congressman Steve Stockman signed on as a sponsor of bipartisan federal legislation requiring the feds to respect state-level marijuana laws, including those allowing medical marijuana use and flat-out legalization regimens in Washington and Colorado. Grits fails to see how any Republican on the states' rights bandwagon could oppose the idea. We'll see where it goes.

Last session, the Republican dominated Texas House Criminal Jurisprudence Committee approved legislation to reduce the offense level by one penalty category for low-level marijuana possession, but House leadership wouldn't let it get to the floor for a vote. By Grits' headcount, the bill would have sufficient votes to pass in the lower chamber if Speaker Joe Straus and the House Calendars Committee would ever let the members vote on it.

One hopes Stockman's sign-on signals the emergence of a new, bipartisan spirit on drug-policy reform. If the feds were to adopt a strong states' rights stance on pot policy, Grits thinks many states, including Texas, might be willing to take them up on the offer.

MORE: From Paul Kennedy.

Bite me: Validating research supporting forensic dentistry inhibited by lack of willing bite-mark victims

I ran across an interesting article documenting critiques of forensic dentistry. In it, bite mark expert Dr. Gregory Golden:

concedes that there’s little scientific research to back claims from forensic odontologists in court — but he hopes to see that change. "What we’re trying to do," he says, "is to develop proper, unbiased research techniques that take into consideration real-time mechanisms or setups for researching bite marks."

The problem, he says, is that it’s difficult to conduct realistic studies on how bite marks injure living human flesh. In the past, studies have been conducted on cadavers and anesthetized pigs, with dental models mounted in vice grips. But such studies don’t accurately reflect bites on living human flesh, and Golden adds that "it’s almost impossible to find voluntary subjects offering themselves to be bitten severely enough to be wounded."

In the meantime, though, he wants to keep drawing  his expert witness fees until the science either justifies or debunks his premises. While it's understandable that few subjects would be willing to be seriously bitten in service to science, that's not a good excuse for courts to admit unreliable evidence.

To me, though, the question posed in the headline - whether forensic dentistry should be "banned" - frames the issue too starkly. The real question is, "under what circumstances is its use appropriate?". Is there a role in the justice system for forensic odontology? Sure. As the article mentions, it has been useful in identifying victims in mass casualties, matching teeth to dental records. And it can play an important role in excluding suspects. But there's little basis for relying on such testimony to accuse someone -  certainly not as the primary evidence against them, as was done in the New York case resulting in a recent DNA exoneration that inspired the article.

Unfortunately, as the National Academy of Sciences articulated in a 2009 report, many forensic disciplines aren't really "science" at all and forensic odontology is one of them. Instead, like tool mark or hair-and-fiber analyses, the method of identification involves subjective comparison, not scientific proof. The justice system has so firmly incorporated these non-scientific disciplines into the marrow of its being that it would be unrealistic to argue all comparative disciplines should be abandoned - e.g., it's been shown that cognitive bias can produce errors in fingerprint comparisons but the likelihood that evidence will ever be excluded from court is virtually nil. But some disciplines are more reliable than others and forensic dentistry is definitely one of the shakier, less credible examples.

Roundup: Bullying flaks, students, and more

Here are a few odds and ends that caught Grits eye recently but haven't made it into individual posts:

Former TDCJ flak's discrimination suit dismissed, appeal filed
Former TDCJ public information officer Michelle Lyons this week had a discrimination suit thrown out of federal court in which she alleged the agency retaliated against her for reports of misconduct, reported the Huntsville Item She has filed an appeal, declaring Judge David Hitner improperly dismissed the case. Her suit alleged gender bias because Jason Clark, who replaced her as PIO, did not face a demotion and pay cut for similar activities. FWIW, I don't think Lyons was demoted and Clark elevated because of gender bias - I think it's because Clark was willing to play ball with management while Lyons reported misconduct to the Office of Inspector General. Gender likely had little to do with it compared to her decision to report rather than cover up alleged misconduct. Regrettably, I've little doubt that's the message received by remaining TDCJ employees. MORE: From The Backgate.

Do anti-bullying campaigns make the problem worse?
Might anti-bullying programs counterproductively increase bullying among those who receive their messages? That's the contention of a UT-Arlington criminologist who studied the topic. He found that anti-bullying programs "may actually teach students different bullying techniques — and even educate about new ways to bully through social media and texting." Further, "some programs even teach students how to bully without leaving evidence behind." Fascinating. This dynamic reminds me of low-level offenders sent to prison which becomes essentially a "crime college," spurring them to heights of criminality they may have never otherwise reached. Often politicians react to perceived crises being hyped in the media with knee-jerk solutions because they need to do "something." But "something" is not always better than nothing and sometimes ill-conceived responses can make problems worse. That may be what's happening with anti-bullying campaigns.

Skimping on witness protection
Texas has no witness protection program like the feds and some other states. If we did, maybe this witness would still be alive and the San Antonio murder trial she was prepared to testify in would be going forward sooner than later.

Cold Justice, hot media property
Former Harris County DA candidate Kelly Siegler's reality TV program Cold Justice got picked up for a second season. The Texas Bar Journal has a brief profile (scroll down to see the story). I must say, while it appears Siegler is doing good work, I'm not a fan of turning the justice system into reality TV fare, though at least Cold Justice doesn't stoop as low as Cops, Bait Car, or other justice-related reality shows.

Limited government and Texas corrections
Brooke Rollins from the Texas Public Policy Foundation had a column in the Austin Statesman last week promoting the "Texas model" for criminal justice reform. She concluded, "Every dollar we save on costly incarceration is a dollar that a Texas family keeps. This is just another example of how limited, efficient government is a benefit to Texans everywhere." Grits has recently lamented the limitations of Texas' approach; it was a good first step but not nearly sufficient to reasonably argue the state is a national leader. RELATED: "If Texas' justice reforms were so great, why does the state still have the nation's largest prison system?"

'The Recanters': False convictions more likely as law strays further from biblical standard

One frequently hears Christians lament how far society has strayed from biblical teachings, and it's true. In many cases that's a good thing, as one needn't look far to find abhorrent examples like the murdering of homosexuals or non-virgin brides. But there are elements of biblical law whose wisdom still rings true and I've always thought that, among them, is the notion that convictions for crimes should only be sustained upon the testimony of "two or three witnesses." In both the Old and New Testament, corroboration of an accusation was seen as essential to justifying punishment.

In the modern era, though, there are increasingly many situations where mere accusation by one individual is enough to convict, even (in fact, especially) when that individual is a child. At The Texas Observer, Maurice Chammah has a story that highlights the conundrum created by uncorroborated accusations titled, "The Recanters: What happens when abuse claims come undone." The main protagonist in Chammah's featured  horror story says she was "bullied her into accusing her stepfather" by a social worker at age eight during a three-and-a-half hour interview. Her testimony on the stand contradicted itself and included incredible, unlikely accusations, like her stepfather bathing her vagina with a washcloth filled with broken glass. After his conviction, she was shipped off to foster care; the state thought her mother unfit because she refused to believe her husband was guilty. Ironically, she told Chammah, in foster care she really was molested by a foster parent in Killeen. Whether or not the stepfather was guilty - and both he and the alleged victim insist he was not - it seems impossible to argue the state's intervention benefited the child.

Wrote Chammah, "Advocates for the wrongfully convicted and advocates for child victims both understand the difficulties of child witnesses. They agree that their memories are more malleable than an adult’s. Both see that problem as evidence that their side is losing." The Texas Legislature, for its part, keeps amending the law to make it easier to secure convictions in such cases without corroboration:

Earlier this year, Republican state Sen. Joan Huffman passed Senate Bill 12, which will allow prosecutors to introduce evidence against child-sex assault defendants of prior offenses, including accusations by other children. “Very often it’s hard for jurors to believe the testimony of a small child, especially when there is no physical evidence,” Huffman, a former Houston prosecutor and judge, told me. Often, so much time has passed before the child comes forward that any physical evidence has washed away or healed over.

Kristin Etter of the Texas Criminal Defense Lawyers Association told lawmakers that the bill “will lead to more wrongful convictions.”

Both concerns are legitimate. I agree that child molestation cases - especially accusations of long-ago abuse with no physical evidence - are difficult to prosecute. I also agree that changing the law to reduce the amount of evidence against a defendant necessary to convict is likely to send more innocent people in prison. Texas' many DNA exonerations in sex assault cases show that even uncorroborated adult testimony can lead to false convictions.

Which brings me back to the "two or three witnesses" standard promulgated in Mosaic law and repeated in the New Testament by both Christ and the Apostle Paul. There is real wisdom in that requirement. As stories of "the recanters" remind us, accusations are not proof.

RELATED: See earlier Grits coverage of Huffman's bill here and here.

DPS crime lab fiasco headed to CCA oral arguments, and other stories

Here are a few tidbits that caught my eye before Grits must leave town today for work:

Auditor critiques state LEO licensing agency
The state auditor has produced a new report on the Texas Commission of Law Enforcement Officer Standards and Education. They found, "The Commission on Law Enforcement Officer Standards and Education (Commission) reported unreliable results for all three key performance measures tested for fiscal year 2012 and the first two quarters of 2013." Two particular areas of concern:

• The Commission backdates the license award date in [its data system], rather than using the actual date on which the Commission issued the license. As a result, the Commission's licensing data may change frequently.
• The Commission does not sequentially number its licenses. As a result, the Commission cannot ensure that the licensing data is complete

Last session, the Legislature changed the name of the agency to the Texas Commission on Law Enforcement (TCLE, pronounced "Tickle").

High court set to hear arguments on DPS crime lab fiasco
Oral arguments have been set for October 23 in Ex Parte Leonard Coty, in which the Texas Court of Criminal Appeals will revisit their already decided opinion that evidence from discredited DPS crime lab analyst Jonathan Salvador is fundamentally unreliable because of his history of errors and drylabbing. The Harris County Public Defender Office has published their brief (pdf) online. Grits hopes to attend; it should be quite a show, with major implications for thousands of East Texas drug convictions.

Mugged (and extorted) by online mugshots
Good New York Times piece regarding one of the most cynical, sleazy business models Grits has run across in all my years working on criminal justice policy.

When crime-scene evidence crawls away
Interesting piece on practical problems for forensic scientists trying to date dead bodies based on maggots.

Floating prisons in the war on terror
The Obama Administration is beginning to house terrorist suspects in navy vessels outside of US waters so they won't be subject to protections in the US legal system, the same rationale for using CIA "black sites" for interrogations in foreign countries. Bryan Finoki predicted this some time ago, as Grits noted in 2008. New York City experimented with prison barges as recently as the '90s to handle overflow from Rikers Island and later juvenile offenders. Here in Texas, TDCJ considered but rejected similar plans back in the 1980s.