Study: HIV rates higher around TDCJ prison units

The Huntsville Item brings word of a strange research finding related to HIV rates near TDCJ prison units ("HIV rates higher around TDCJ prisons," Jan. 8).

Areas surrounding Texas Department of Criminal Justice prison facilities have higher HIV rates than those that do not, according to a study released last spring.

Walker County was among those listed with high HIV rates in a study published in “The Professional Geographer” academic journal in May 2013. The study  titled “Vulnerable places: prison locations, socioeconomic status, and HIV infection in Texas” found that in ZIP codes with TDCJ prisons, HIV rates were significantly higher than those farther from the prisons.

“This is an important finding and suggests that prison facility locations might be considered a risk marker for places that are vulnerable to HIV infection and spread,” the study reads. “Prioritizing them for HIV surveillance and intervention will reduce the rate of new infections and help to accomplish the goals of (the National HIV/AIDS Strategy).”

The area in and around Walker County has the highest number of prison facilities in the state — a total of seven  and also elevated HIV rates — according to the Texas Department of State Health Services.

The TDSHS report from 2012 lists the HIV rate (cumulative number of people diagnosed) in Walker County as 150 per 100,000. The national rate sits at about 16 while the rate in Texas is slightly higher at 16.4, they say using data from the U.S. Census.

“The results ... indicate that areas in close proximity to TDCJ units have lower socioeconomic status and [higher] rates of HIV,” the study reads. “With increasing distance from TDCJ prison units, the HIV infection rate of the general public decreases.”

Huntsville was also listed in the top 25 cities (tied for 20th highest) in Texas in HIV infection and AIDS diagnoses, according to the TDSHS.

The researchers explain in the article that there isn’t a definite cause for this finding — likening it to a chicken-and-egg scenario.

“Do TDCJ facilities create high HIV rates by releasing prisoners (known to have high HIV rates) into the community or do TDCJ facilities locate in areas with high HIV rates?” the researchers ask. “There might not be an answer to this question.”

There could be a third possibility: Perhaps the relationship isn't between prisoners and the outlying community, but prison staff. There are only four regional release facilities where prisoners exit TDCJ, and most do so with a bus ticket back to their county of conviction where they have an appointment already set with their parole officer. If there's a correlation between HIV rates and prisons beyond those four facilities, perhaps it's because of prison staff, not the inmates. Who knows?

Notably, reported the Item, "Both TDCJ and state HIV totals have risen in the last 15 years. In 1996, TDCJ accounted for 1,377 inmates that were positive for the disease. In 2009, (the most recent data on TDCJ’s website) 2,453 inmates were positive for the virus." TDCJ doesn't test inmates for HIV while they're locked up unless they request it, but "inmates are tested prior to discharge to help set up HIV care while the inmate is transitioning from correctional care to the general public." If there's any sort of causal relationship going on here, it's going to be difficult to decipher.

Areas surrounding Texas Department of Criminal Justice prison facilities have higher HIV rates than those that do not, according to a study released last spring.

Walker County was among those listed with high HIV rates in a study published in “The Professional Geographer” academic journal in May 2013. The study  titled “Vulnerable places: prison locations, socioeconomic status, and HIV infection in Texas” found that in ZIP codes with TDCJ prisons, HIV rates were significantly higher than those farther from the prisons.

“This is an important finding and suggests that prison facility locations might be considered a risk marker for places that are vulnerable to HIV infection and spread,” the study reads. “Prioritizing them for HIV surveillance and intervention will reduce the rate of new infections and help to accomplish the goals of (the National HIV/AIDS Strategy).”

The area in and around Walker County has the highest number of prison facilities in the state — a total of seven  and also elevated HIV rates — according to the Texas Department of State Health Services.

The TDSHS report from 2012 lists the HIV rate (cumulative number of people diagnosed) in Walker County as 150 per 100,000. The national rate sits at about 16 while the rate in Texas is slightly higher at 16.4, they say using data from the U.S. Census.

“The results ... indicate that areas in close proximity to TDCJ units have lower socioeconomic status and rates of HIV,” the study reads. “With increasing distance from TDCJ prison units, the HIV infection rate of the general public decreases.”

Huntsville was also listed in the top 25 cities (tied for 20th highest) in Texas in HIV infection and AIDS diagnoses, according to the TDSHS.

The researchers explain in the article that there isn’t a definite cause for this finding — likening it to a chicken-and-egg scenario.

“Do TDCJ facilities create high HIV rates by releasing prisoners (known to have high HIV rates) into the community or do TDCJ facilities locate in areas with high HIV rates?” the researchers ask. “There might not be an answer to this question.” - See more at: http://www.itemonline.com/local/x1186916587/HIV-rates-higher-around-TDCJ-prisons#sthash.yi42Q8oJ.dpuf

Houston man claims DA's office knew of exonerating DNA results, left him in prison

In Houston, a man named Reginald Matthews on Thursday held a press conference hoping to prod the Harris County DA into expediting his exoneration after discovering that DNA results, which weren't available until after his 1991 jury trial, showed he wasn't the perpetrator. According to the Houston Chronicle ("Houston man who spent 14 years in prison claims he was wrongly convicted," Jan. 10):

Matthews was convicted of burglary of a habitation to commit a sexual assault after a woman reported that a man broke into her southeast Houston home and took off his clothes.

The naked man fled after being seen by the woman and her younger sister.

Minutes later, a police officer stopped Matthews, who was clothed, about two blocks away and took him to the scene of the crime. Matthews said the victim did not identify him. Instead, he said, the victim's sister who saw the attacker just for a moment identified him.

Matthews said the first DNA test on the clothes left behind at the scene was not conclusive, but DNA tests completed after he was convicted in 1991 cleared him.

Those results, he said, were buried in his court file where he found them in 2009, years after poring over his records after being released.

His supporters said Thursday that it is another wrongful conviction hidden behind inaction.

"Science exonerated this man," said activist Deric Muhammad. "Someone at the District Attorney's office had this information while he languished in a jail cell. They just let him sit there - for 14 years."

The situation led Matthews' supporters to demand answers. ...

The prosecutor who handled the case in 1990 was Mark Vinson, who said he did not remember the case and had not reviewed the file. But, he said, he would if asked.

"I'll go down and take a look at the file if the District Attorney's office asks me," said Vinson, who has since retired. "In 22 years, I put a lot of people away. I can't remember them all."

Matthews said he told the Harris County DA about his discovery in 2009, but "Jeff McShan, a spokesman for the office, would only say that Matthews' case is under review." Reportedly they have met with him several times. Something seems hinky if, four years after he brought it to their attention, the DA's office still won't speak up to corroborate or deny Matthews' characterization of the forensic results.

If it's really true that exonerating DNA results came back after a conviction and the DA never told Matthews' defense counsel, much less sought his release, that's incredibly damning. If Matthews' account is accurate, it bespeaks either incompetence or cynical callousness. Sooner than later, the HCDAO needs to confirm or dispute these allegations. Or else Matthews should just file a habeas corpus writ claiming actual innocence and make them confront the question. It's difficult to understand why that hasn't already happened.

Harris County Sheriff called on carpet by feds over sex abuse in jail

Harris County Sheriff Adrian Garcia this week "was called to testify before the U.S. Department of Justice's review panel on prison rape because one of the four buildings of the Harris County Jail was found in a DOJ-commissioned study to have one of the worst rates of sexual assault in the nation," reported the Houston Chronicle ("Garcia defends record on sex abuse in county jail," Jan. 9). Though Garcia and his spokesman, Alan Bernstein, have vociferously criticized the survey in the past ("in writing, he savaged the study, calling it 'flawed and misleading'"), when offered the chance to do so in Washington, "the sheriff demurred, saying he'd rather discuss how he was working to improve the jail." Such a cagey response is perhaps understandable, given the jail's record. Reported the Chronicle:

The most serious incident came to light in 2011. An internal investigation found "numerous" female inmates had sexual relations with jailers in the laundry rooms of two downtown jails, apparently in exchange for favors.

In October 2012, Garcia confirmed he fired six employees due to the illicit contacts, and two others resigned or retired. The Harris County District Attorney's Office investigated, and one jailer was charged with improper sexual activity with a person in custody.

A Houston Chronicle review of sheriff's records showed that between 2008 and 2010, more than 200 jail employees were disciplined for infractions of rules and state law. They included the use of excessive force on inmates, having sex with inmates, mistakenly releasing dangerous prisoners, sleeping on the job and leaving their assigned posts. Two deputies were fired for receiving sexual favors from female inmates who were washing cars at the jail and received soft drinks and cigarettes in exchange.

Garcia suspended one female jailer without pay for 10 days after she ordered an entire cellblock of female inmates to remove their clothing for an unauthorized strip search.

In addition to the Sheriff firing guards found to have committed sexual misconduct, Bernstein "noted that Harris County last year implemented an LGBT policy in the jail to protect gay, lesbian and transgender inmates, one that has been hailed as ahead of other correctional systems."

But Grits must say, given the "shoot the messenger" response by the Sheriff when this report came out, it seems a bit disingenuous to decline the opportunity to attack it at the DOJ where his counterclaims could be interrogated. I'm sure Mr. Bernstein will show up soon in the comments to tell us the survey was flawed, all the problems have been fixed, so "move along, nothing to see here." (He told the paper, "we're ahead of the curve in investigating these things and preventing them in the first place.") But if Garcia isn't willing to dispute the survey results when called before the review panel that issued them, those criticisms start to seem a little less credible. Here's a link to the full report, as well as transcripts and testimony from the DOJ hearings.

See related Grits posts:

• DOJ: 3 Texas prison units, Harris jail have among highest sexual victimization rates
• On the merits of localizing national stories: Amarillo Globe-News explores top Texas prison units for sexual victimization
• Total fired in Harris jail sex probe jumps to six

New Texas laws that took effect January 1st

Here's the list. Via the Legislative Reference Library.

Overcriminalization and tort reform: No easy choices for conservatives

Yesterday, Grits attended a panel at the Texas Public Policy Foundation's annual Policy Orientation (a multi-issue conference sponsored by a conservative think tank in Austin) on the topic of "Overcriminalization." Attendees were treated to one of the more productive, frank discussions of the topic among ideological conservatives I've run across, maybe ever.

Shannon Edmonds of the Texas District and County Attorneys Association said the fundamental problem is that the Texas Legislature is "addicted" to creating new crimes and boosting penalties for existing ones, joking that, “Admitting you have an addiction is the first step on the road to recovery.” Since 2005, he said, the Texas Lege has created 233 new crimes, by his count:

'05: 49
'07: 50
'09: 40
'11: 53
'13: 41

TDCAA doesn't include in that count new ways to commit old offenses or so-called "enhancements" that merely increased penalties. These are all activities that were legal before and illegal now - an average of 47 new items per session. After Texas revamped its Penal Code in 1993, there were 160 enumerated crimes on the books, Edmonds told the audience. Today, there are around 225 crimes in the Penal Code, said Edmonds, and more than 1,500 in other parts of the law. The Occupations Code alone now contains more crimes than did the entire Penal Code 20 years ago. If you want less government, Edmonds told the crowd, the Legislature can't keep giving the government more and more things to do.

Paul Larkin of the Heritage Foundation aptly noted that "overcriminalization" has several components, occurring when there are too many laws, when laws have too severe a penalty, as well as when the state uses criminal law as a regulatory device. In many cases, he said, the state has criminalized behavior that historically society has not considered "blameworthy," often to protect "rent-seeking activity." In essence, he argued, one way to enlarge the scope of your business is to make it a crime for other people to compete with you.

Larkin suggested four, related responses aimed at reducing overcriminalization. 1) Don't pass new criminal laws. 2) Cull unnecessary statutes. 3) Only criminalize "willful" behavior, buttressing the concept of mens rea, or criminal intent. And finally, 4) allow a mistake of law to be raised as a defense in situations where no reasonable person would know a particular act is a crime. For example, he said, everyone knows you can't rob, rape, or murder, but not everyone knows what items they throw in the trash may qualify as hazardous waste.

Problem is, society still needs ways to disincentivize improper disposal of hazardous waste. That essentially leaves two options: Regulatory enforcement and civil litigation, both of which conservatives traditionally have railed against with even more fury than "overcriminalization."

State Rep. Bryan Hughes, while acknowledging that, in the tort-reform era, he was “wandering off into traffic,” proposed what he called a “wonderful solution” to the overcriminalization problem: Bolstering rights under the 7th Amendment to the US Constitution to sue over torts in civil court. Regrettably, there was no one in the room from Texans for Lawsuit Reform to rebut that suggestion, which incidentally was echoed by TDCAA's Edmonds. I'd have loved to hear their reaction to the idea.

There's a certain historical symmetry to the notion of reinvigorating private litigation to reduce overcriminalization. It's a relatively modern concept that, as Edmonds put it, crime victims get "free lawyers," which we call "prosecutors." Under 18th century English common law, as noted by David Friedman, "Prosecution of almost all criminal offenses was private, usually by the victim. Intermediate punishments for serious offenses were strikingly absent" and there were "no public officials corresponding to either police or district attorneys." Though by 1820 most US states had some form of public prosecutor, "privately funded prosecutors constituted a significant element of the state criminal justice system throughout the 19th century," historian Robert Ireland has written. Indeed, he noted, there is evidence that railroad companies hired some of the prosecutors who secured the conviction of Frank James for murder and train robbery.

Certainly the modern practice of having public prosecutors employed by the state evolved for good reasons: For example, public prosecutors are (supposedly) bound to presume a defendant innocent until proven guilty, while private prosecutors were paid to assume the defendant guilty and seek a conviction. But when we're talking about crimes lacking mens rea - essentially torts that have been criminalized - the legacy of private prosecution may still have value. That's especially true in instance where criminal law is used to bolster rent seeking activities and/or commercial interests. Arguably, some of these "offenses" should be handled by private attorneys in civil courts.

Rep. Hughes offered an anecdote showing how the use of criminal law in commercial disputes can distort justice, describing a constituent of his named “Brenda” who bounced a check for $410 in 2004. She was prosecuted, appointed a state-paid defense lawyer, and received deferred adjudication probation, which required payment of probation fees, fines, etc.. In 2008 she lost her job, quit paying her probation fees, and stopped attending required meetings with her probation officer. Her probation was revoked and she was sentenced to 18 months in state jail, Hughes said. The irony, though, was that over course of her sentence she had paid thousands of dollars in probation fees to the state, but none of the money went to the business to whom she bounced the check. (The use of prosecutors' bounced check divisions is particularly insidious when they're employed on behalf of payday lenders, a topic The Texas Observer has explored and this blog has deplored.)

The conservative movement has a fundamental dilemma if they hope to address overcriminalization. Promoting "tort reform" has been a huge source of campaign funds for conservative candidates, who have also historically fought new regulations on behalf of business-oriented constituents. However, that doesn't stop other, more numerous constituents from looking to government for "justice" when they've been wronged, which is why such regulations end up in the criminal code instead of being enforced by regulatory bodies or resolved through civil lawsuits.

Panel moderator Vikrant Reddy mentioned the absurdist Politifact fact check of a Grits for Breakfast claim that there are eleven different felonies in Texas you can commit with an oyster. (Politifact said it was "mostly true" because it might be 16, or seven, depending on how one counted them.) All those oyster laws are items that could and should be handled more effectively either through regulations or in civil court. (Most of them have never been prosecuted.) But when conservative politicians reflexively oppose business regulation and neuter the civil courts, people are going to seek redress somewhere. However absurd and ineffectual, creating new criminal laws allows politicians to claim they're "doing something," even if it's mainly symbolic.

When Republicans were the minority party, they could advocate "less government" as a general meme on all fronts and no one thought much about it. But now that they control all three branches of Texas state government, when the public seeks redress of their grievances, politicians can't say "no" to everything. Sue in civil court? No, we'll limit damages through tort reform. Regulation by state agencies? No, it would make businesses inefficient. So if conservatives also want to fight "overcriminalization," what means are left for government to respond to the concerns of constituents? Incumbent politicians don't get to just tell them, "Sorry, you're screwed." Not if they want to stay in office.

I agreed with almost everything said yesterday about overcriminalization, but in the end conservatives are confronted with hard choices. Government would surely be "smaller" if more disputes were handled in civil than criminal courts. But going that route would inflame powerful constituencies. The principled path is seldom the easiest one.

MORE: See quotes culled from yesterday's event on the Right on Crime Twitter feed.

Game warden SWAT team?

Why in heaven's name does the Texas Parks and Wildlife Department need its own SWAT team? Does the guy in this photo look like he's prepared to perform any task you traditionally associate with a game warden? Wrote William Norman Grigg at LewRockwell.com:

The Texas Parks and Wildlife Department (TPWD) has a newly minted SWAT team. To be sure, the agency maintains that this “cadre of specialty teams” will focus on search-and-rescue missions. However, the way Game Warden Cullen Stakes is dressed in the photo above makes it pretty clear that he’s not getting ready to rescue people who have been stranded by floods, or have gotten lost in the woods.

Among the TPWD’s specialized units is the “Scout Team,” a group of 25 wardens who “have received a variety of training and can be used in border operations, dignitary protection, or any form of high-risk law enforcement, such as serving felony arrests or hostage situations,” explains Texas Parks & Wildlife magazine.

“We can have a team anywhere in Texas in four hours, and that’s the worst-case scenario,” boasts Law Enforcement Special Operations Chief Grahme Jones. “A lot of times it’s much faster.”

Ridiculous. There's nowhere in the state where TPWD couldn't call in local SWAT if they needed it. Utterly absurd, and pointless.

'How to get a teenager to admit to a murder he didn't commit'

My old pal Nate Blakeslee from Texas Monthly provides the answer to the question in the title in this new article. Page two of the story's web version has an excellent discussion of how and why false confessions occur.

See related Grits posts and this item for links to past Grits coverage of topics related to false confessions.

Dallas police management should ignore union demagoguery

Last year, Grits lamented bullying behavior by the Dallas Police Association at the Texas Legislature, so I'm unsurprised to learn they've resorted to similar tactics at the city level. An earlier Dallas Morning News report said Dallas PD Officer Amy Wilburn was fired "after an independent witness told investigators that 19-year-old Kelvion Walker had his hands up and showed no signs of having a weapon when Wilburn shot him Dec. 9." The DMN's Tanya Eiserer reported last week that the union sent the city manager a letter in response claiming Wilburn's firing means "Dallas Police Officers no longer know when they can use deadly force and, if they do, question whether they are going to be fired if they are forced to." But "don't shoot the guy with his hands raised" doesn't seem like too much to ask.

In their letter, DPA president Brian Pinkston wrote, "No longer does the DPA only focus on better pay and benefits" but also advocates "polices" to make the department "more effective and efficient" at promoting public safety. At the Lege, that meant promoting the expansion of wiretapping authority. In Dallas, that means opposing limits on high-speed chases aimed at reducing injuries to officers and civilians and now, opposing body cameras and management-backed changes to training in the wake of unjustified shootings. Reported Eiserer:

Pinkston, who became president about two years ago, wrote that the association has “tried to work with DPD management” and “stood by management on many occasions, including the Southwest drug debacle and the botched handling of the South Dallas rapist.”

The “drug debacle” is clearly a reference to the controversy surrounding the failure of police commanders to launch an investigation into the conduct of two Southwest patrol officers once they became aware of misconduct surrounding a botched drug raid. Brown lightly punished two deputy chiefs for their handling of the situation. The department’s second in command also recently admitted that he mishandled the situation when he, too, became aware of the allegations of misconduct involving the two officers.

In the case of the South Dallas rapist, [Chief David] Brown came under intense criticism because the department didn’t more quickly notify the public about a series of rapes and for releasing the name of a “person of interest” who turned not to have had anything to do with the attacks.

Well, naturally DPA didn't mind when the department was recalcitrant about punishing officers who lied in police reports and in court. They're the ones whose job it is to try and prevent the department from disciplining bad actors! And it hardly affords the union extra credit if they failed to criticize the chief for not wanting to publicly vilify somebody for rapes he did not commit. What's really going on here is that DPA "stands by" management when they agree with them (or when they don't have a dog in the fight), and play the bully when management behave like managers and discipline or fire officers who don't follow the rules.

This is pure demagoguery on DPA's part. Hopefully DPD management and the city council will see it for what it is.

No right answers: Questioning capital jurors

At the Austin Statesman, editorialist Ken Herman has a column (Jan. 6) describing the questionnaire presented on Monday to the jury pool for the capital murder trial of Brandon Daniel, who stands accused of killing Austin police officer Jaime Padron back in 2012. Here's the portion of the article describing the questions asked:

The potential jurors were assured their answers would be seen only by attorneys in the case. The questionnaire prodded them about a variety of topics, some quite personal, including their religion, hobbies, mental health, medications, substance addictions, criminal record, ACLU membership and “your personal view of psychiatrists and psychologists.”

There also were questions that could foreshadow possible defense strategies, including whether “you, a family member or a friend (has) ever been the victim of physical or sexual abuse” or “emotional or mental abuse as a child.”

“If yes,” it said, “please describe.”

And there were questions with questionable relevance, such as “What type of car(s) do you drive?”

There were 11 death penalty related questions, starting with “Do you believe in the death penalty? If yes, why?”

That was followed by more nuanced queries, including one seeking the “statement which best summarizes your general views” about the death penalty. One possible answer was “I am generally opposed to capital punishment except in those very few cases of an unusually brutal, bizarre or extreme nature.”

Question 24 asked if life without parole could be “more appropriate” in some capital murder cases. Question 25 asked if death could me [sic] “more appropriate” in some capital murder cases. Question 26 asked if answers to questions 24 and 25 would change in “the intentional killing of a police officer.”

Question 19 asked “Have your views on the death penalty changed over the years?”

Some years ago in a past life, my old firm Paper Trail Research Services performed a service for attorneys in civil cases evaluating potential juror pools overnight using public records and web-based databases, supplementing (and occasionally, contradicting) data listed in the juror questionnaires. Today, in the era of Facebook, Twitter and other social media, I imagine that sort of supplementary data would be even more robust and readily available. Given that some of the questions can indeed be quite personal, it's little wonder not everyone is completely honest when answering them.

Capital murder juries must be "death qualified," meaning anyone who fundamentally disagrees with the death penalty cannot serve. You get a jury of your peers as long as those peers all agree it's okay for the government to kill you.

My personal view of the death penalty amounts to agnosticism. Do I "believe in the death penalty"? I'd have to say "yes," in the sense that, yes, it exists. (I also believe in evolution, and that the earth revolves around the sun.) And I'd have to answer question 19 - whether my views on the topic have changed over time - as "yes." Over the years, I've tried on varying death-penalty positions, pro and con, like so many ill-fitting suits. Neither abolitionism nor overt support seem to fit my own personal sensibilities. If pressed, my answer to nearly every such query on the subject would likely be "it depends," which I doubt would satisfy either side in such a case. Grits actually believes life without parole is a "worse" punishment than death. Everyone dies, but not everyone is locked up in a cage for decades on end with no hope of redemption.

Anyway, I consider one's theoretical views on the topic to have little value as it relates to any particular episode: The question in any given case is not theoretical, it's "should the state kill this guy?" There's also a subtext to that question: "Do you trust the government with life and death decisions?" A lot of people may believe in the death penalty but may also believe the government couldn't find its ass with both hands and a flashlight.

There may be people in the world you think need killing. But with trust in government near all-time lows, that doesn't mean one necessarily trusts the prosecutors or the judge, the competence of defense counsel, or for that matter the legislators who set the parameters for who will die and how those decisions get made, much less the appellate courts reviewing the cases for error. Nor can one necessarily trust that the governor will step in to fix any problems via clemency if and when those folks inevitably screw up.

All that to say: I'm glad I wasn't called for that jury.

Backstory: Texas Observer on the San Antonio Four

At the Texas Observer, Maurice Chammah has one of the more detailed accounts yet published of the backstory behind the San Antonio Four case.

Photo by Tamir Kalifa via The Texas Observer.

Having covered it during session for the Texas Tribune, Maurice has a greater understanding than most about the context surrounding the new Texas law that allows habeas corpus writs to challenge junk science used to secure false convictions. He also highlights the role of a Canadian from the Yukon Territory named Darrell Otto whose intrepid efforts helped bring this injustice to light, engage Texas-based advocates on the topic, and ultimately led to their recent release.

As is often the situation in non-DNA cases, even if their cases are formally overturned, there remains an even higher hurdle for the courts to declare them innocent, reported Chammah: "Though the women are free, they’re not exonerated. A local judge still must make recommendations to the Court of Criminal Appeals about whether to throw out the convictions and how to rule on some of the women’s lawyers’ arguments. Ware expects a battle over whether the women are declared 'actually innocent,' a designation that would entitle them to compensation from the state for their imprisonment."

Other states reduce solitary use, Texas study authorized but languishes, unfunded

Grits wanted to alert readers to several interesting, recent items related to solitary confinement, which in Texas is called "administrative segregation," or "ad seg."

Brandi Grissom at the Texas Tribune reports that an unfunded study of solitary confinement authorized by the Texas Legislature likely won't come off because nobody in state government is seeking "gifts, grants and donations" to make it happen, though one suspects grant funding would be available if they sought it. Said an advocate quoted in the story, “Texas has the second-largest administrative segregation population in the country, with over a quarter of the people in there with mental illness.”

Meanwhile, the Wall Street Journal reported (Jan. 5) that:

The New York City Department of Correction has stopped its controversial use of solitary confinement for mentally ill inmates who break the rules, a shift that jail officials are hailing as groundbreaking.

The last of the prisoners being held in the Mental Health Assessment Unit for Infracted Inmates at Rikers Island jail were reassigned Dec. 31, and what is known as the punitive segregation program has been permanently closed, said Correction Commissioner Dora Schriro, an appointee of former Mayor Michael Bloomberg. ...

The changes follow a September report commissioned by the City of New York Board of Correction, a watchdog agency with powers to order changes in the city's jail system. The report was critical of the practice of solitary confinement for mentally ill inmates. 

The report found that over the past six years the number of beds designated for punitive segregation in city jail increased by nearly 62% to 998 and that about 41% of those in segregation units were mentally ill. With the policy changes that number has dropped to 782 beds, and it is expected to decrease to about 650 by the end of June, said Ms. Schriro. 

Punitive segregation is still used for prisoners other than those with mental illness diagnoses, though Ms. Schriro said other recent changes have dropped the average confinement there by more than a third.

Finally, the Albuquerque Journal published a column this week on solitary confinement which reported that "New Mexico officials have the goal of cutting their segregation statistics from near 10 percent of inmates to 5 percent. Why? Because they have found that it doesn’t really work." The article concluded:

Even if we think prison should be a place where lawbreakers suffer for their misdeeds, why should we care [about solitary confinement]?

From a bottom-line perspective, because solitary is expensive.

From a practical perspective, because, as [Deputy Corrections Secretary Joe] Booker points out, nearly everyone gets out of prison. They come back to our towns and neighborhoods, and if they come back less socialized, their mental illness worse and their anger deepened, then we’ve only made one of our problems worse.

MORE (Jan. 9): A judge in South Carolina has ordered the Department of Corrections in that state to take remedial action to protect mentally ill inmates in solitary confinement:

Circuit Judge Michael Baxley said in his ruling that the five-week trial of T.R., P.R., K.W., et al. v. South Carolina Department of Corrections, et al. was the most troubling of the 70,000 cases to come before him in the past 14 years.  

Click here for a copy of the ruling (PDF)

"The evidence in this case has proved that inmates have died in the South Carolina Department of Corrections for lack of basic mental health care, and hundreds more remain substantially at risk for serious physical injury, mental decompensation, and profound, permanent mental illness. As a society, and as citizen jurors and judges make decisions that send people to prison, we have the reasonable expectation that those in prison – even though it is prison – will have their basic health needs met by the state that imprisons them. And this includes mental health. The evidence in this case has shown that expectation to be misplaced in many instances," Baxley wrote.

Large proportions of young men arrested by age 23

According to a new study, "By age 23, 49 percent of black males, 44 percent of Hispanic males and 38 percent of white males have been arrested."

Via HuffPost

Judges must enforce Michael Morton Act, now in effect

Since the New York Times recently decried "rampant prosecutorial misconduct" related to concealment of exculpatory evidence, we should note that Texas just implemented the "open file" reform for which the Grey Lady's editorial board was advocating. The news hook for the Times story was a recent, much-discussed dissent by 9th Circuit Chief Justice Alex Kozinski (whom Grits had the good fortune to dine with last year at a conference at Yale).

The Dallas News editorial board over the weekend had a good piece noting that Texas' new law requiring prosecutors to open up their files took effect at the beginning of the new year.

Effective Jan. 1, there’s a new law in Texas bearing Morton’s name. Reflecting the state’s determination to purge the justice system of gamesmanship, the Michael Morton Act sets out clear requirements that prosecutors must share certain case material — such as police reports and witness statements — with the defense. Had Morton’s lawyers seen the entirety of the case file — had parts not been hidden from him — he would never have been robbed of freedom for a quarter-century.

The DMN cited a death penalty case first called into question by the Dallas DA's Conviction Integrity Unit that shows why such a statute was needed:

A 21-year-old death penalty case that’s still playing out in the courts shows how procedures have changed for the better. In November, the prosecuting and defense attorneys from the original trial of Joseph Roland Lave, sentenced to death in the grisly 1992 Herman Sporting Goods killings in Richardson, were called to testify in a challenge to his conviction.

One of Lave’s former attorneys testified that the defense never saw the 159-page police report on the slashing-bludgeoning deaths of 18-year-old night clerks Frederick Banzhaf and Justin Marquart. That’s almost unbelievable by today’s standards, with the open-file policy of Dallas County District Attorney Craig Watkins.

One side question probed by Lave’s current attorneys is whether authorities manipulated a surviving witness and, unbeknownst to the defense, helped reshape her evolving recollection of the attack before trial. Thus, disclosure of evidence remains an issue two decades later.

The Michael Morton Act is a clear determination from lawmakers that evidence must come completely out of the shadows for airing where it belongs — in front of a jury.

Notably, the Ellis County DA recently requested an additional staff member from the commissioners court to implement the new law, but most others seem to be doing it with existing resources. See additional, recent coverage of the new statute from the Longview News-Journal.

It remains to be seen whether Texas District Attorneys who are used to greater selectivity about what evidence they share with defendants - particularly outside the major urban areas - will fully comply with the statute. They've had time to do their training and set up internal systems. But as written, the new law includes no penalty for prosecutors who violate its tenets. So to the extent its true, as Judge Kozinski wrote, that “There is an epidemic of Brady violations abroad in the land,” his observation that “Only judges can put a stop to it” still holds in Texas, even in the wake of the Michael Morton Act.

NSA jams San Antonio garage openers; forensic cookie capers

A couple of stories related to digital forensics caught my eye this morning that may interest Grits readers.

NSA jams San Antonio garage openers
First, a Texas-specific item. It's a shame we have to read this from a German magazine instead of the Texas media, but there's a must-read story from Der Spiegel (Dec. 30) about the NSA facility in San Antonio that opens:

In January 2010, numerous homeowners in San Antonio, Texas, stood baffled in front of their closed garage doors. They wanted to drive to work or head off to do their grocery shopping, but their garage door openers had gone dead, leaving them stranded. No matter how many times they pressed the buttons, the doors didn't budge. The problem primarily affected residents in the western part of the city, around Military Drive and the interstate highway known as Loop 410.

In the United States, a country of cars and commuters, the mysterious garage door problem quickly became an issue for local politicians. Ultimately, the municipal government solved the riddle. Fault for the error lay with the United States' foreign intelligence service, the National Security Agency, which has offices in San Antonio. Officials at the agency were forced to admit that one of the NSA's radio antennas was broadcasting at the same frequency as the garage door openers. Embarrassed officials at the intelligence agency promised to resolve the issue as quickly as possible, and soon the doors began opening again.

It was thanks to the garage door opener episode that Texans learned just how far the NSA's work had encroached upon their daily lives. For quite some time now, the intelligence agency has maintained a branch with around 2,000 employees at Lackland Air Force Base, also in San Antonio. In 2005, the agency took over a former Sony computer chip plant in the western part of the city. A brisk pace of construction commenced inside this enormous compound. The acquisition of the former chip factory at Sony Place was part of a massive expansion the agency began after the events of Sept. 11, 2001. ...

One of the two main buildings at the former plant has since housed a sophisticated NSA unit, one that has benefited the most from this expansion and has grown the fastest in recent years -- the Office of Tailored Access Operations, or TAO. This is the NSA's top operative unit -- something like a squad of plumbers that can be called in when normal access to a target is blocked.

According to internal NSA documents viewed by SPIEGEL, these on-call digital plumbers are involved in many sensitive operations conducted by American intelligence agencies. TAO's area of operations ranges from counterterrorism to cyber attacks to traditional espionage. The documents reveal just how diversified the tools at TAO's disposal have become -- and also how it exploits the technical weaknesses of the IT industry, from Microsoft to Cisco and Huawei, to carry out its discreet and efficient attacks.

The unit is "akin to the wunderkind of the US intelligence community," says Matthew Aid, a historian who specializes in the history of the NSA. "Getting the ungettable" is the NSA's own description of its duties. "It is not about the quantity produced but the quality of intelligence that is important," one former TAO chief wrote, describing her work in a document. The paper seen by SPIEGEL quotes the former unit head stating that TAO has contributed "some of the most significant intelligence our country has ever seen." The unit, it goes on, has "access to our very hardest targets."

Indeed, the unit maintains a catalog of spy tools, described in another Spiegel article, which "reveals that an NSA division called ANT has burrowed its way into nearly all the security architecture made by the major players in the industry -- including American global market leader Cisco and its Chinese competitor Huawei, but also producers of mass-market goods, such as US computer-maker Dell."

Have a cookie, delete a cookie, give a cookie to a cop
Speaking of "getting the ungettable," while poking around various digital forensics blogs this morning I ran across this recent article on how to access incredibly detailed information from Google Analytics cookies, even if the computer user has deleted them. These aren't techniques only available to the NSA but to workaday computer forensic folk at police departments and domestic security agencies.  Wrote computer forensics examiner Mari DeGrazia:

The real power of the Google Analytic artifacts comes into play when deleted artifacts are recovered. By using Scalpel [ed. note: a file carving tool] and then parsing the carved files you can have some new data to play with and analyze.

Based on some initial and limited testing with Internet Explorer 11 and Windows 7, it appears the browser deletes then creates a new cookie when visiting a website rather then overwriting the old cookie. This means there could be a lot of cookies waiting to be recovered.

This technique not only allows forensic examiners to see what websites you visited and when but what keywords were used to get you there. In the faux example in the post, the last keywords listed on the spreadsheet created by the technique were "How to Clear History."

All kind of creepy, huh?

Commission to discuss reviews of flawed forensic disciplines

The Texas Forensic Science Commission meeting next week in Austin (Friday, Jan. 10, see their agenda) will include discussions of the ongoing arson review by the state fire marshal, the review of hair and fiber microscopy cases whose scientific basis has been called into question, "Brady" training for forensic scientists, as well as pending litigation over the DPS-Houston crime lab fiasco stemming from misconduct by analyst Jonathan Salvador and a number of other interesting topics.

Regrettably, these meetings have not been well-covered by the MSM over the last couple of years, but looking at the agenda, there's a fair amount of meat on the bone this time around so maybe that will change. See also the agency's extensive 202-page 2013 annual report (pdf).

Judge: Cameron County corruption beggars belief

On New Year's Day, the Valley Morning Star published an extensive account of judicial and prosecutorial corruption in a story tiled "Judge: Hard to believe depths of Cameron County corruption." The story began:

An extensive federal investigation found corruption in the Cameron County’s legal system and judiciary to be so pervasive that most people probably wouldn’t believe it — “unless they heard it themselves,” U.S. District Judge Andrew S. Hanen said in 2013.

Hanen made his statement on Dec. 3, as he sentenced Austin attorney Marc G. Rosenthal to 20 years in jail and ordered him to make restitution of more than $13 million for bribing former 404th state District Judge Abel C. Limas.

The jury found Rosenthal paid Limas for favorable court rulings in civil cases, bribed witnesses, filed false personal injury cases, directed ex-state Rep. Jim Solis and others to pay funeral home directors and ex-Brownsville Navigation District police Chief George Gavito to refer cases. It also found he arranged to manipulate case assignments at the Cameron County District Clerk’s Office, and paid persons to pose as witnesses and to provide false statements, and testimony.

On that same day that the jury returned its verdict on Rosenthal, attorney Ray R. Marchan was supposed to report to federal prison in Fort Worth, following his June 18, 2012 conviction on six counts of racketeering, conspiracy to commit racketeering, aiding and abetting extortion and mail fraud. He was sentenced to 3.5 years in jail.

Instead, Marchan jumped to his death from the Queen Isabella Memorial Bridge.

This month, the same judge is expected to sentence former Cameron County DA Armando Villalobos as part of the same web of corruption. Judge Hanen ordered that numerous ethical violations exposed in these cases be reported to the state bar and other authorities. Here's how the article concluded:

Hanen said that the court had heard witnesses and seen exhibits that show uncharged illegal acts and violations of disciplinary rules.

“Some of this evidence was presented to the jury and some of it was not,” Hanen also said. “In fact, defense counsel requested, and this court felt duty-bound by law to give an instruction to the jury to disregard these ethical violations in reaching its verdict,” Hanen stated.

“The U.S. Attorneys and federal agents involved in the trial of this case are hereby ordered to provide the appropriate authorities at the State Bar of Texas, Chief Judge Ricardo Hinojosa of the Southern District of Texas and the Chief Judge of the Fifth Circuit or his designee a copy of this order and, if they so request, the evidence of the multiple ethical violations committed by multiple attorneys involved in this case.

“This includes the evidence not presented at trial and covers all attorneys involved, not just the defendant,” Hanen ordered.

He continued: “This court has great admiration for the trial bar and the benefits that trial lawyers (both prosecution and defense) provide to society. It is their vigilance, among others, that ensures that the system of justice works and that the rights of all Americans are protected.”

“That being said, nothing can do more harm to society than an individual, (or a group of individuals) armed with a law license (or working for someone armed with a law license) that has no moral compass, no respect for the rules governing ethical conduct and no respect for the truth. Some of the acts or omissions may be considered minor; some may have been inadvertent,” Hanen wrote.

“Nevertheless, there were some acts that were neither minor nor accidental mistakes, and the individuals that committed these acts, in this Court’s opinion, should not be allowed to practice law anywhere.”

Texas statehouse elections: Who got primaried?

The Texas Business Roundtable has the most comprehensive summary I've seen of the finalized primary and general election matchups for 2014 Texas statehouse races. See their comprehensive lists for the:

• Texas House, and 
• Texas Senate

Top five Texas private prison stories of 2013

Via Texas Prison Bidness:

#1: Closure of Dawson State Jail and Mineral Wells Pre-Parole Transfer Facility
#2: City of McAllen rejects GEO Group prison for immigrants
#3: The campaign to expose and close the Polk Detention Center
#4: Two North Texas counties stand tall, reject jail privatization
#5: Troubles persist at McLennan County's speculatively built private jail

RELATED: See Grits' list of the Top Ten Texas Criminal Justice Stories of 2013. SEE ALSO: Jordan Smith's list of 2013's Top Ten Criminal Justice Stories from the Austin Chronicle.

New DOJ homicide stats: Murders at 50-year low; blacks 6x more likely to be victims; mass shootings rare

Check out these highlights and lowlights from the new DOJ Bureau of Justice Statistics report, Homicides in the U.S. Known to Law Enforcement, 2011:

• The U.S. homicide rate declined by nearly half (49%), from 9.3 homicides per 100,000 U.S. residents in 1992 to 4.7 in 2011, falling to the lowest level since 1963. From 2002 to 2011, the average homicide rate for males was 3.6 times higher than the rate for females. The average homicide rate for blacks was 6.3 times higher than the rate for whites.
• From 2002 to 2011, young adults ages 18 to 24 had the highest homicide rate of any age group and experienced the greatest rate decline (down 22%) over the 10-year period, from 15.2 per 100,000 in 2002 to 11.9 in 2011.
• The rate of homicides involving a firearm decreased by 49% from 1992 to 2011, while the percentage of homicide victims killed by a firearm (67%) remained stable.
• Large cities of 100,000 or more residents experienced the largest decline (23%) in homicide rates from 2002 to 2011, compared to communities with less than 100,000 residents.
• From 2002 to 2011, the majority (95%) of homicide incidents involved a single victim. In 2011, 66% of homicides with a single victim involved a firearm, compared to 79% of homicide incidents with multiple victims.

Not only was the 4.7 per 100K homicide rate in 2011 the lowest since 1963, it was "54% below its peak of 10.2 per 100,000 persons in 1980." Further, despite all the publicity surrounding high-profile mass shootings, "Since 2002, the percentage of homicide incidents involving two or more victims has remained relatively stable." According to the report, "In 2011, about 110 homicide incidents involved three victims, or less than 1% of all homicides that year. Homicide incidents involving four or more victims were even less frequent. In 2011, of an estimated 13,750 reported homicide incidents, about 25 involved four or more victims."

Rehearsing arguments for warrant requirement re: cell phone location data

Since Texas' legislation to require law enforcement to seek warrants for cell-phone location data failed to pass in 2013 (despite stalwart efforts from state Senators Juan Hinojosa and Craig Estes and state Rep. Bryan Hughes, along with his many joint and coauthors), Grits has continued to follow debates in other states that could inform a renewed push for such a bill next session. To that end, I was interested to see this amicus brief (pdf) from the Electronic Frontier Foundation, filed in a Connecticut case, arguing for the courts to impose a warrant requirement.

The brief argues that cell-phone location data "reveals a detailed map of a person's location over time," and urge the court to take seriously the US Supreme Court's admonishment in Kyollo to reject "mechanical interpretations" of the Fourth Amendment, and the 7th Court of Appeals declaration that "The meaning of a Fourth Amendment search must change to keep pace with the march of science."

There are now more cell phones than people in the United States, according to the brief, and 56% of them are "smart phones" that allow for even more accurate location tracking (because they're constantly pinging the nearest cell tower for emails, texts, etc..) The growth in smart phone use has been accompanied by an explosion in the number of cell towers, which as a practical matter "means that a person's location can be pinpointed with even greater precision." EFF cited a 6th Circuit case, US v. Skinner, in which:

law enforcement was able to track a phone (and the person carrying it) almost 770 miles from Tucson, Arizona to Abilene, Texas over two days.   Agents could see the suspect's travel point by point, and waited until he stopped at a rest stop before swooping in to arrest him. Most critically, [a]t no point did agents follow the vehicle or conduct any type of visual surveillance." The cell phone made the government surveillance easier. Agents would not need to follow the truck physically around the clock or run the risk that they would be discovered. Nor did they need to find a way to surreptitiously install a GPS device onto the truck to track its movements. Instead, as the New Jersey Supreme Court recently noted, cell site information "is akin to using a tracking device that can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. (Citations ommitted.)

Further, "cell phone tracking can even reveal information about a person in the most constitutionally protected space: a home. One federal magistrate judge has noted 'pinging a particular cellular telephone will in many instances place the user within a home, or even a particular room of a home.'"

Argued the brief, "Imposing a search warrant requirement would not result in an unnecessary burden on law enforcement because the law currently requires the government seek judicial authorization before obtaining" cell-phone location data. Under Texas law, by comparison, the current standard for obtaining this information is less clear. In legislative hearings last spring, most agencies said they too were seeking court orders - albeit at a lower standard than required for a warrant - to access cell-phone location data. But the Texas Department of Insurance told legislators it obtained that information using only a subpoena, and representatives of cell-service providers said they provided information under both subpoenas and court orders based on reasonable suspicion. The EFF brief concluded:

cell-phone location data "is a valuable crime fighting tool because of its power to intrude on a traditionally private sphere to obtain an enormous amount of sensitive information about where a person has been, their patterns of movements and their associations and affiliations. Law enforcement should be permitted to use this information to keep people safe, provided they adhere to strict safeguards designed to protect privacy. The proper way to balance these interests is to require a search warrant supported by probable cause before authorizing disclosure of cell site location information.

Expect similar arguments to be made next year when the Texas Lege again considers these issues. Maine, Montana and New Jersey have all instituted warrant requirements for police to access this information and I fully expect other states to follow suit before the 84th Texas Legislature re-convenes. Indeed, if the scandal over the NSA's collection of cell-phone records had erupted just a couple of months earlier than it did, I have little doubt Texas would already have passed such  legislation. If we get it done in 2015, though, that would still be better late than never.