Grits for Breakfast

Tulia Ten Years Later

2009-07-19T07:49:00.006-05:00

The Amarillo Globe-News today has a feature commemorating the tenth anniversary of the Tulia drug stings ("Tulia drug busts: 10 years later," July 19), which informs us that, to this day:

Many Tulia residents and those associated with the July 23, 1999, raid by numerous law enforcement agencies shy away from talking publicly about the incident that catapulted the Swisher County town of about 5,000 into the spotlight and brought the discussion of small-town racism to the forefront. For some, including many of the 47 defendants arrested, the calamity of the investigation and the ensuing drama remains a wound that has not healed.
The episode began when dozens of people - most of them poor, African-American and with prior run-ins with the law - were hauled from their beds and paraded in front of local media on the morning of July 23.
The arrests were the culmination of a monthslong investigation by the Panhandle Regional Narcotics Trafficking Task Force, with much of the work conducted by undercover officer Tom Coleman. Many of the defendants were subsequently given long prison sentences by juries, and others accepted plea bargains.
But cases that first appeared solid began to collapse as Coleman's testimony drew greater and greater scrutiny. It was ultimately determined that Coleman was not credible after he gave conflicting testimony in court. Meanwhile, it was revealed that he had been arrested for theft, a charge for which he was never convicted. But his arrest was initially withheld from the defense, further eroding the credibility of the prosecution.
In the end, 35 defendants were pardoned by Gov. Rick Perry on Aug. 22, 2003, and taxpayers in 17 of the counties that participated in the regional task force paid them about $5.9 million as part of a settlement. The defendants split about $4 million, and attorneys were paid the rest.
Housing the incarcerated defendants was estimated to have cost Swisher County residents about $230,000, which translated to a 5.8 percent increase in county property taxes, according to the county in 2000. In April 2003, the county also agreed to pay $250,000 to the defendants in exchange for immunity from civil lawsuits.

In the end, all of Texas' drug task forces were ultimately consolidated under the Department of Public Safety and later disbanded by Governor Perry when other scandals kept cropping up in town after town across the state.

We tried after the Tulia scandals to convince the Texas Legislature to require corroboration of some sort in undercover drug buys like those Tom Coleman supposedly performed, but they extended that corroboration requirement only to informants, but not to peace officers. Thus now, ten years later, despite the fact that Tom Coleman was later convicted of perjury, the state can still obtain convictions based on the uncorroborated word of a single undercover officer.

That was actually the biggest lesson from the Tulia case for me: I took away no conclusions about racism or small-town bigotry, but instead gained a new understanding of what constitutes a fair trial. The Tulia cases were where I learned that, even though juries supposedly convict when they conclude someone is guilty "beyond a reasonable doubt," the law actually does not require the state to present sufficient evidence to reach that high threshold when testimony from a single person can convict. That's true even if that person is wearing a badge, and undercover drug stings aren't the only place in criminal law where that problem comes up.

See also a short video from the Globe-News featuring brief interviews with participants.

Texas sex offender registry includes kids as young as ten

2009-07-19T07:23:00.003-05:00

In the Dallas News this morning, Diane Jennings has a story on Texas' policy of allowing judges to place juveniles as young as 10 years old on the sex offender registry ("Some say sex offender registry ruins a juvenile's 2nd chance," July 19). Here's how the article opens:

The faces of child sex offenders are startling – chubby cheeks, big eyes, a mop of hair, or wispy strands held back with barrettes. The descriptions on Texas' public registry are equally jolting: 4 feet tall, 65 pounds; 4 feet, 2 inches, 70 pounds.
"Those are not the people that we're walking around terrified of," says Michele Deitch, a University of Texas law professor.
The inclusion of children as young as 10 on the state's public sex offender registry is a little-known policy – even to juvenile justice experts such as Deitch.
"I'm absolutely a little bit shocked that kids that young can be on the list," says Deitch, who teaches juvenile justice policy at the LBJ School of Public Affairs.
She's stunned because public registration contradicts the purpose of juvenile justice: to give kids a second chance. In the case of some juvenile sex offenders, their criminal records are off limits, but information about their crime is easily accessible on the Internet.
"It is a terrible situation," Deitch says. "The juvenile justice system is designed to rehabilitate kids and to make sure that they can change."
According to the Texas Department of Public Safety, there is no minimum age for inclusion on the state list. But a child must be at least 10 to be handled by the state juvenile justice system, so a judge may order an offender that young to register.

Indeed, writes Jennings, "according to a Dallas Morning News analysis of the Texas sex offender registry, there are about 4,000 people on the registry who were younger than 18 at the time of their crime, including 1,004 younger than 14." Even folks over at the Texas Association Against Sexual Assault were "stunned" that children so young were required to register. I actually was aware (from reading the law) that it was possible for children that young to wind up on the registry, but I had no idea that one-quarter of the juveniles registered were under 14 when they committed their offense.

Fallible Fingerprints: The Dustup over Cognitive Bias

2009-07-18T10:41:00.002-05:00

I just ran across a lengthy, excellent article on the sources and frequency of error in fingerprint forensics, published in the online magazine MillerMcCune.com last month: "Bias and the Big Fingerprint Dustup" (by Sue Russell, June 18). Here's how the story opens:

In 2004, cognitive neuroscientist Itiel Dror and Dave Charlton, a veteran fingerprint examiner and doctoral candidate, chatted over coffee in a Brighton hotel suite after a gala dinner at the U.K. Fingerprint Society's conference. Charlton was upset. Months earlier, Dror had designed a study to see if fingerprint examiners' decisions on matches might unconsciously be biased by information they received about a case.
Would examiners change their opinions about prints they'd called matches five years earlier, Dror wondered, if they viewed them again in a different context?

Charlton, supervisor of a U.K. police department's fingerprint lab, editor of the Fingerprint Society's journal Fingerprint Whorld and a true believer, was certain they would not. He urged Dror not to waste his time.

But Dror was insistent: "I said, 'Indulge me! Let's do it.'" And so, five international experts were put to the test covertly, re-examining matched prints from their own old cases while armed with different — and potentially biasing — "case information." They'd agreed to be tested, but they didn't know when — or even if — test prints would cross their desks.

That night in Brighton, the results were in. For Charlton, they were a jaw-dropper.

"Not only some, but most, of the fingerprint examiners changed their minds," said Dror, who was far less surprised by the flip-flopping. As an expert in human thought processes and the hidden power of cognitive bias — an array of distortions in the way humans perceive reality — he had a decided advantage.

Fingerprints have been accepted as unassailable evidence in courts for more than 100 years, but vaunted claims of their uniqueness and infallibility still lack scientific validation. By contrast, the existence of cognitive bias and the subjective nature of human judgment have been thoroughly established by hundreds of scientific studies going back decades.

What's more, the experiment was replicable with different fingerprint examiners using different fact scenarios:

In another study, [Dror's] team had six international experts each view eight latent prints that they'd each previously examined, but now they were accompanied with a new, mundane context — something like, "the suspect has confessed," or, "the suspect is in custody." More expert reversals followed. Four of the six reached different conclusions. One changed his mind three times.

Indeed, this isn't just a bias in experimental situations but occasionally in the real world:

in a landmark U.S. case, Stephan Cowans of Boston became the first person to be convicted on fingerprint evidence, then — after serving six years in prison for shooting a police officer — exonerated by DNA. Two prosecution experts and Cowans' two defense experts (formerly of the same fingerprint unit) had all verified the match. After his 2004 release, Cowans revealed his earlier certainty about fingerprints by saying that on the evidence presented in court, he would have voted to convict himself.

What can be done to reduce cognitive bias among researchers? Dror advocates removing forensic work from law enforcement and severely limiting the amount of contextual information given to forensic workers about individual cases:

A key National Academy of Science report recommendation — to move crime labs out from under law enforcement's wing and create a new national institute of forensic sciences — would surely help impartiality. If lack of funding delays that, "so be it," Dror said. "But you can't have it both ways. If there's no reform, don't say, 'I am 100 percent objective, I make no mistakes, there is no problem.'"

In the interim, some steps can be taken. When further examiners are called on to verify the work of a first, they should always examine the evidence independently without knowing the earlier results.

Efficiency, scientific validity and objectivity could also be dramatically improved for a relatively small financial outlay by establishing and enforcing "best practices" in crime labs (another NAS report recommendation.) Best practices are formally documented standard operating procedures, processes and rules for how to do your work that are specifically designed to make it effective and efficient, and avoid error. Having best practices that all fingerprint examiners everywhere must adhere to would be a big step forward, Dror believes, but only if they are science-based and validated by experts in cognitive neuroscience, psychology and thought processes.

Today, guidelines are provided by Scientific Working Group on Friction Ridge Analysis, Study and Technology. However, these are only guidelines with no mechanism of enforcement. "What is more," Dror said, "none of the current guidelines really directly and adequately deals with confirmation bias and other cognitive issues." ...
He favors the immediate implementation of the practice of withholding all nonessential crime details from forensic scientists. Detectives, investigators, lawyers, judge and jury need to know if fingerprints are related to terrorism or bicycle theft, but for fingerprint examiners counting ridge characteristics, loops, whorls and other minutiae, such context is irrelevant.

"We're not going to send a fingerprint to Interpol if somebody stole a bike," Dror said. "But we need to make sure the fact that the examiner thinks it's a terrorist or the Madrid bomber doesn't cloud their judgment too much." To Dror, it's like his personal physician needing his medical history, while the lab technician counting his white blood cells for a blood test does not.

The issue of cognitive bias comes up again and again in discussions of forensic errors. While it seems like it should be the easiest problem to fix - managing who gets what information - the reaction to such suggestions from forensic workers tend to range from defensive to openly hostile, as this excellent Miller-McCune article demonstrates. In the wake of the National Academy of Sciences report, we're going to see a revamping in the near future of methodologies in many forensic fields, and removing sources of cognitive bias must surely be a key component of any such reforms.

New DPS Director

2009-07-17T19:14:00.003-05:00

Will be Rick Perry's current Homeland Security chief Steve McCraw, reports the Statesman's Mike Ward.

Public Safety Commission plans to cancel contract with Driver Responsibility fee collections vendor

2009-07-17T16:07:00.003-05:00

At a Texas Public Safety Commission meeting today, the vendor in charge of collections for the Orwellian-named "Driver Responsibility" surcharge faced a brutal reaction from commission members, who questioned the company's "ethics" and openly called for their contract to be terminated as soon as feasible. Department of Public Safety staff promised to prepare an agenda item to end the contract (which requires 90 days notice) at the next Commission meeting in August.

Chairman Allan Polunsky, in particular, was frustrated that a contract paying the vend0r $12 million per year over the last three years - up from $4 million the first full year it was issued - had been renewed recently for a five-year term without the PSC ever being notified or taking a formal vote. The vendor - an Austin-based company called MSB Government Services - takes 4% off the top from everything it collects, the company's President told the Commission. Polunsky stated in no uncertain terms that the process had been unacceptable and the contract should have - and would be - put out for bid.

Other commissioners and DPS' General Counsel were concerned with the company's use of DPS letterhead on its dunning letters, particularly those which are not form letters but are specifically tailored to individual cases.

Company officials had come prepared to suggest using more "assertive, collections-oriented verbiage" in letters and "daily" phone calls aimed at those who owe back surcharges. That development, if authorized, would make the use of DPS' name and letterhead even more problematic. Given that a whopping 6% of Texas drivers presently owe Driver Responsibility surcharges, that would put DPS' official imprimatur on some fairly harsh communications directed at a significant percentage of the public.

In the end, Commissioners cut off MSB's presentation in mid-stream and demanded that they (and DPS staff) return at their next meeting better prepared to answer their outstanding questions.

I attended to speak to the commission about the Driver Responsibility program 0during the public communications period to ensure that somebody had told the PSC face to face that they're required to implement an indigency program for the DRP sooner than later. I reminded them that the Driver Responsibility surcharge is tacked on in adddition to existing criminal penalties and was created explicitly as a revenue generation scheme - essentially a "tax by another name" - and that excessive civil fees can be as harmful to civic health as high taxes.

Staff discussions of the surcharge revealed some data I'd not seen before about the program. Since its inception DPS, has billed out $1,270,538,003 in surcharges but MSB has only been able to collect $468,774,222. There are four categories of offenses for which DPS collects the surcharge: "Points" accumulated on the driver license because of tickets, DWI convictions, no-insurance citations, and driving with a suspended license. Most fees are for lesser offenses, as demonstrated by this breakdown of the portion of fees assessed attributable to each category (compiled by the DPS Driver License division):

Points: 3%
DWI: 12%
No insurance: 57%
No driver license: 28%

The collections percentages also varied widely. Those whose surcharge is for "points" (the lowest surcharge fees) paid off their surcharge at a rate of 69%, compared to just 37% for DWI and 38% for those with no-insurance tickets.

Predictably, surcharges for offenders driving with a suspended license had the lowest collections rate (27%). That's because the penalty for not paying other types of surcharges includes suspension of your driver license, so many people in that category already owe surcharge fees they can't pay, which is why they were driving without a license in the first place. It's precisely that slippery slope that's most troubling to me about this fee because it creates a situation where surcharges snowball, harming public safety instead of improving it by making it more likely people will drive without a license or insurance.

The other piece of news coming out of these discussions (and I'll be providing readers' much more detail on this aspect of the story next week): I informed the Commission that they'd soon be receiving a formal petition for new rulemaking regarding the Driver Responsibility surcharge proposed on behalf of this blog.

This is something my wife Kathy Mitchell and I have been preparing as a little home-grown activist project. Under state law, agencies are required to give a petition for rulemaking a public hearing if it's accompanied by 25 signatures. The rules we plan to suggest would implement the Indigency, Amnesty and Incentive programs that were authorized by the Lege in 2007 but never actually established by the PSC.

More on this next week when we publicly release the formal petition for rulemaking and begin to solicit support and endorsements for the proposal.

Is budget crisis at Bexar probation real or an excuse to fire Bill Fitzgerald's enemies?

2009-07-17T06:50:00.002-05:00

A story published yesterday in the San Antonio Express News announced that Bexar County's controversial probation director, Bill Fitzgerald, plans to fire nine employees ostensibly because of a reduction in their budget ("Bexar probation office eyes layoffs, furloughs," July 16):

Aimee Sharp, finance director of community supervision and corrections, said the department has seen a 28 percent drop in court fees since Bexar County courts-at-law judges restructured in May the way court fees are allocated.

The court fees that probationers pay now go first to the courts before any of the money is distributed to community supervision. If probationers don't pay the full amount of the court fees, community supervision may not get any of the allotment, according to Sharp.

She also said because judges are not inclined to require probationers to pay off probation fees at the completion of their program, community supervision is not receiving its share.

“We were really caught by surprise when this happened,” she said.

The probation department has been dipping into its fund balance — used for emergencies — to compensate for the loss of fees. In May, it had a fund balance of about $655,000, about 5 percent of its total budget.

The department receives half of its funding from the Texas Department of Criminal Justice, and court fees fund the remainder of the $13 million budget.

The state recently informed the Bexar County probation department that its state funding would decrease by 3.15 percent — or $170,762, which is the equivalent of four probation officers.

If the restructured fee collection continues, the department could expect a $700,000 decrease in its share of fees for an entire fiscal year, which runs from October to September.

The decrease was the unintended consequence of the judges' efforts to raise revenues and avoid layoffs in their courts, Fitzgerald said.

A couple of things strike me about this story. First, the decision by Bexar judges shows they're still utterly out of touch with what's going on at the probation department, worrying more about budgets for their own individual court staff more than providing supervision for convicted defendants they've allowed to stay in the community. That's a bad public safety decision. The judges serve as the board of the county probation department, but in Bexar the current crop of jurists has seldom behaved like people that understand they have a fiduciary responsibility toward the department, instead worrying only about their own feifdoms in each individual courtroom.

Also, I want to learn more about the assertion (which I'm not sure I believe) that "The state recently informed the Bexar County probation department that its state funding would decrease by 3.15 percent." All the data I'd seen from the recent legislative session said probation funding was increased overall statewide. According to the Texas Criminal Justice Coalition's budget analysis, during the 81st legislative session this spring:

Approximately $11.1 million was allocated for projected community supervision population growth.
$13.1 million was allocated for a 3.5% pay increase in FY 2010 and an additional 3.5% salary increase in FY 2011 for community supervision officers and direct care staff. A similar increase (about 3.5% in each year of the biennium) was also provided to correctional and parole officers. ...
The "Community Supervision Officers and Direct Care Staff Salary Increases Rider" appropriates $13.1 million over FY 2010-2011 and specifies that “It is the intent of the legislature that community supervision officers and direct care staff receive a 3.5% salary increase in fiscal year 2010 and an additional 3.5% salary increase in fiscal year 2011.”

So with all those new resources allocated, how is it that the Bexar probation department is claiming their funds have been cut? Why haven't other departments seen their budgets cut, if that's the case? (Maybe they have - a lot of Grits readers work in the probation field so let me know if this is happening where you are.) Unless the Department of Criminal Justice is reducing Bexar's funds because they've flouted state diversion efforts - in which case the REAL story would be their gross failure to implement required diversion programs - the information being provided here doesn't sound correct to me.

A healthy dose of skepticism is required because of Bill Fitzgerald's well-earned reputation as a union-busting, retaliatory manager who's not above terminating or harassing employees who're whistleblowers or union sympathizers. Is there really a budget crisis at the Bexar probation department or is this just an excuse for Fitzgerald to get rid of more internal enemies? That's the unspoken question looming over this announcement, and it deserves an honest answer before any layoffs begin.

Jamming cell phones in prison debated at US Senate committee

2009-07-16T07:42:00.005-05:00

A US Senate Committee yesterday heard testimony from Texas state Sen. John Whitmire, TDCJ Inspector General John Moriarty, and others regarding a proposed bill by Sen. Kay Bailey Hutchison that would change federal law to allow states to jam cell phones in prison.

Though Texas instituted a "zero tolerance" policy on cell phones last year after a death row inmate called Sen. Whitmire's office (leaving an open question what level of "tolerance" they operated under before), the senator told the committee that strategy cannot succeed, according to AP: "'Short of jamming and a complete shutting down of those phone signals, I don't think we can remedy the problem,' Whitmire told the Senate Committee on Commerce, Science and Transportation. 'It is a public safety problem.'"

Information Week provided good coverage from the hearing ("Senate mulls jamming cell phone signals in prison," July 15):

The proposed legislation seeks to have Congress revise a 1934 law that blocks the jamming of phone signals. The bill, which would permit jamming cell phone signals in prisons, has been sponsored by Senator Barbara Mikulski of Maryland, who noted that a prison inmate in Maryland used an illegally obtained cell phone to order the killing of a witness.
"Just more than two years ago, Carl Lackl, a young father of two in Maryland, was killed after an inmate used his cell phone to order a hit," Senator Mikulski said in a statement. "This is not an isolated incident and it must stop. All across the country, cell phones are being smuggled into prisons and being used by inmates to communicate with criminals on the outside."
The other side of the issue was presented in a letter to Commerce Committee members by several public interest organizations. According to Public Knowledge the letter maintained that there are ways better than jamming to deal with the illegal cell phones-in-prison problem.
"Jamming prison cell phones would jeopardize public safety because there is no way to jam only phones used by prisoners," said Public Knowledge's legal director Harold Feld in a statement. "All wireless communications could be shut down within a prison
"As spectrum experts have explained, jamming contraband cell phone signals without jamming authorized communications presents an extremely difficult engineering challenge. Cell phone signals use many bands, often proximate to or shared with public safety operations."
To alleviate the problem, Public Knowledge suggested that lowering the cost of legal calls in prisons -- currently costing as high as $300 for an inmate with family -- would help as would a stepped up effort to detect and stop the flow of unauthorized cell phones in prisons.
The flow of illegal mobile phone is eye-popping. California, for instance, confiscated more than 2,000 cellphones in 2008. Phones are sneaked into prisons by visitors and corrupt guards, or simply thrown over prison walls. In Brazil, where the problem has reached epidemic proportions, cell phones are delivered to prisoners by homing pigeons.

The part about the homing pigeons cracked me up. Prison smuggling often produces some surprisingly creative and resourceful schemes, when you pay attention to the details, but that one takes the cake! Guard corruption is still the principle culprit, though; TDCJ caught dozens of guards smuggling cell phones onto prison units after they instituted a lockdown last year.

Wireless companies also opposed the legislation, according to coverage in a Florida paper:

The cell phone lobby is fighting the prison officials. John Walls of CTIA - The Wireless Association (formerly known as the Cellular Telephone Industries Association) told the Chronicle that jamming technology "is imprecise. The problem with jamming technology is that's it's imprecise."
He added: "We're certainly not at odds on the intent. There's not one legitimate customer that we have behind bars, and shutting that off is as much of a concern to the industry as anybody else. … Where we think that perhaps we could do a better job ... is by looking at all the solutions available today and selecting the ones that protect legitimate use while still solving the problem, and that would be cell detection and managed access."

For more detail from critics of the idea, I've uploaded onto Google documents a copy of the letter to Sen. Hutchison from Public Knowledge and other interest groups critical of the jamming proposal.

MORE: Here's a little more detail about the bill from BroadbandConsensu.com that I hadn't seen published elsewhere: "While S. 251 does not call for an outright legalization of jamming technology, it allows for prisons to apply for a waiver from the ban and provides for Federal Communications Commission testing and certification of jamming technology."

See related Grits coverage:

DPS wrong to delay indigency program for 'driver responsibility' surcharge

2009-07-15T15:47:00.004-05:00

The General Counsel over at the Texas Department of Public Safety believes the agency isn't required to implement an "Indigency program" for the "Driver Responsibility" surcharge collected by the agency until September 1, 2011, according to their Public Information Officer Tela Mange. The Public Safety Commission meets tomorrow and Friday, when a discussion with the vendor is scheduled regarding low collection rates for the Driver Responsibility surcharge.

But according to a staffer working for state Rep. Sylvester Turner, whose amendment to the Sunset bill established the language in question, a separate section of the bill requires the agency to implement some sort if Indigency program by September 1 of this year, with more detailed specific requirements becoming mandatory in two years.

I'm certain this Grits post only contributed to the confusion, but after conversations with Mange and Turner's staff, I think I've cleared things up:

Rep. Turner amended the Sunset bill in two places, adding what became Sections 6 and 15 of the bill. Section 15 gives detailed specifications for an Indigency program, but that section of the bill specifically states it would not go into effect until Sept. 1, 2011. However, Section 6 of the bill takes effect September 1, 2009: That portion of the legislation changes a "may" to a "shall," requiring the agency implement some sort of indigency program this year. (See the full bill here - large pdf.)

As background, DPS originally was authorized in 2007 to create an Indgency program (along with "amnesty" and "incentive" programs) by SB 1723 authored by Sen. Steve Ogden in the 80th Texas Legislature. That bill said the agency "may" create such programs, but they never did so. As a result, this year Section 6 of the Sunset bill changed that to a "shall," effective September 1.

Turner's staffer said the delay in requiring Section 15 to be implemented was to give "flexibility" to the agency, but some version of an Indigency program must be in place when the Sunset bill takes effect. Thanks to SB 1723, the Public Safety Commission has full authority to implement the Section 15 requirements ASAP - they can delay, in other words, but nothing requires them to do so.

The Public Safety Commission has already put off creating an indigency program for too long, and for that matter they'd do well to create "amnesty" and "incentive" programs to help ameliorate the gaping flaws in Texas' surcharge scheme. This program is not working properly and the PSC should use its authority to fix the problem instead of putting off changes until they're absolutely forced to make them.

In any event, the law requires them to implement an Indigency program of some sort sooner than later.

UPDATE: In the comment section, Shannon Edmonds of the Texas District and County Attorneys Association helpfully informs us that, "While I don't claim it to be authoritative, I'll volunteer that our 2009 Legislative Update book (available for order by calling 512.474.2436 or attending one of our legislative update seminars) interprets HB 2730 the same way that you and Rep. Turner's office do."

RELATED:

New report on prison nurseries

2009-07-15T11:13:00.004-05:00

Via Corrections.com:

The Women’s Prison Association (WPA) has released the first-ever national report on prison nursery programs. The report examines the expansion of prison nursery programs across the U.S. These programs allow incarcerated women to keep their newborns with them in prison for a finite period of time. The report also looks at community-based residential parenting programs, which allow women to serve criminal justice sentences with their infants in a non-prison setting.

The report finds that the number of prison-based nursery programs is growing, but that such programs are still relatively rare. Though every state has seen a dramatic rise in its women’s prison population over the past three decades, only nine states have prison nursery programs in operation or under development. Of the nine prison nursery programs existing or in development, four were created within the last five years. ...

The report (pdf), Mothers, Infants and Imprisonment: A National Look at Prison Nurseries and Community–Based Alternatives, is available online at www.wpaonline.org.

Texas was not listed as one of the states with prison nurseries (which were California, Illinois, Indiana, Ohio, Nebraska, New York, South Dakota, Washington, and West Virginia). Does anybody know what happens here with incarcerated mothers and young babies? It's a question I've never thought to ask. Texas passed legislation this year limiting authority to shackle pregnant inmates during labor, but I don't know what happens with the babies after they're born.

MORE: A quick search of TDCJ's website on the topic revealed this story from the Galveston Daily News about the birthing center for pregnant mothers at TDCJ's Carole Young medical unit in Texas City:

The minimum-security unit has helped female offenders with medical needs since 1996. It serves both state jail and Texas Department of Criminal Justice offenders. The University of Texas Medical Branch at Galveston provides the medical care. ...
Between 80 and 100 of the patients at any time are pregnant; inmates assigned to the facility because of its obstetrical clinic typically make up the largest patient group.

After delivery, new mothers on the unit who have permission from the warden participate in the Love Me Tender baby-bonding program, in which they can see their babies not only during scheduled weekend visitation hours, but also for any two-hour period weekdays from 8 a.m. to 5 p.m.

The babies are not housed at the unit, but state Rep. Rick Noriega of Houston has filed a bill, HB 1770, which, if passed [ed note: it failed], would provide housing for infants up to 1-year-old.

After one year, Simpson noted, another Texas Department of Criminal Justice program allows extended visitation with children up to 16 years old, so inmates “roll from one program right into another.”

Though this tells me about where pregnant inmates give birth and visitation policies for infants and young mothers, it doesn't provide a clear picture of what exactly happens to young infants after they're born in Texas prisons. Perhaps readers have more information on the subject.

Melendez-Diaz not as scary as the Washington Post thinks

2009-07-15T09:36:00.002-05:00

The Washington Post today published a "sky is falling" critique of the Supreme Court's decision in Melendez-Diaz that the Confrontation Clause in the Sixth Amendment requires an opportunity to cross-examine crime lab workers who prepare reports for trial. According to the Post ("Lab analyst decision complicates prosecutions, July 15):

"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

Scott Burns, executive director of the National District Attorneys Association, was a prosecutor in Utah for 16 years. "Sometimes it's the game within the game," he said. With less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system," Burns said.

In Prince George's County, lab analysts testify regularly, but the volume of cases is so great that "we still are not able to process all the drug cases," State's Attorney Glenn F. Ivey said. "There's a triage going on in court cases. Some marijuana cases don't get tested, and we end up throwing them out."

Then there are the big rural states, where crime labs are hours away from many county courthouses. "It'll have a huge impact," said Ladd Erickson, state's attorney in McLean County, N.D. "It's not volume as much as it is distance. For some counties, round trip is going to be 10 to 12 hours to testify" for the lab analyst to travel to court.

Burns said 42 states and the District are affected by the Supreme Court case, Melendez-Diaz v. Massachusetts.

From my perspective, though, such concerns seem quite overblown. Given that Texas law adequately complies with the new SCOTUS ruling and we lock up more people per capita than the rest of the country, I just don't buy the argument that the criminal justice system can't function under these restrictions. We also have the problem identified of rural areas needing to use crime labs hudreds of miles away, but Texas hasn't had any trouble filling up our prisons under such strictures.

Texas law (CCP 38.41), which Antonin Scalia approved of specifically in the majority opinion, already requires "notice and demand" regarding testimony by lab workers, where prosecutors must give notice that they intend to use lab evidence and the defense has an opportunity to demand cross-examination if they give ten days' notice. Poof! Problem solved!

So what's the big deal? While there may be some cases dismissed in transition as states change their laws to accomodate the court's opinion, Texas' example shows that it's possible to comply with confrontation requirements in a high-volume, big-state system.

I also don't find it compelling that the criminal justice system may be forced to prioritize cases in order to shepherd scarce resources, which is a fundamental dilemma confronting everyone who must live within a budget. If because of Melendez-Diaz, "Some marijuana cases don't get tested, and we end up throwing them out," would anyone out there really shed a tear?

A much more intriguing set of arguments about Meldendez-Diaz and its effect on federal immigration law can be found on the Fifth Circuit Blog authored by Brad Brogan, who argues persuasively that "the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases."

According to Brogan's reading, Melendez-Diaz eviscerated the Fifth Circuit's ruling in Rueda-Rivera, declaring after poring over the details that "There is simply no room left to argue that CNRs are not testimonial after Melendez-Diaz. The CNR's are ex parte affidavits prepared solely for use at trial, and "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." That's an implication of the case I hadn't heard mentioned previously, but Brogan's right that Scalia's opinion speaks directly to the matter:

Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer in the regular course of his official duties—and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation [under common law].

It'll be interesting to watch these confrontation issues play out in that unlikely venue.

The other major implication for Texas I'd already mentioned here: Melendez-Diaz likely overturns the Texas Court of Criminal Appeals' position that "parole revocation certificates" are "business records," since they are documents specifically prepared for use in court. In this instance, too, I don't see requiring confrontation as a major concern, though next session the Lege may need to enact "notice and demand" provisions similar to those in place for crime lab workers to allow confrontation in parole revocation hearings.

See related Grits posts:

TCJC issues legislative wrapup

2009-07-14T15:11:00.004-05:00

The Texas Criminal Justice Coalition has published its summer newsletter (pdf) including a wrap-up detailing criminal justice bills from the 81st Texas Legislature and a description of TCJC's work plans for the interim. Supplementing the newsletter, on its website TCJC has posted these issue-by-issue updates from the 81st session:

Jefferson recalls liberation of Bastille prisoners

2009-07-14T13:57:00.018-05:00

Today France celebrates the 220th anniversary of the storming of the Bastille, perhaps the only national holiday I'm aware of in any country celebrating a prison break. (Really, the mob was after gunpowder stored in the garrison and releasing the prisoners was an afterthought, but that's the popular portrayal.) As Thomas Jefferson described the spectacle in a letter to John Jay:

The mob, now openly joined by the French guards, force the prisons of St. Larare, release all the prisoners, and take a great store of corn, which they carry to the corn market. Here they get some arms, & the French guards begin to to form & train them. ...

“[At the Bastille] They took all the arms, discharged the prisoners & such of the garrison as were not killed in the first moment of fury, carried the Governor & Lieutenant governor to the Greve (the place of public execution) cut off their heads, & sent them through the city in triumph to the Palais royal.”

As Jefferson himself wrote after recounting the episode, Vive la revolucion! For more background see novelist Catherine Delors' blog post from last year's Bastille Day titled, "The 14th of July 1789: What really happened on Bastille Day?"

Texas praised for prison pop reduction efforts

2009-07-14T06:50:00.006-05:00

Texas' efforts to reduce prison population growth through drug diversion programs and probation reforms were highlighted in a Washington Post feature yesterday titled, "States seek less costly substitutes for prison" (July 13). According to reporter Keith Richburg:

what is striking, experts say, is how some states with reputations for being tough on crime are most rapidly embracing these policies, which might have once been dismissed as the product of liberal think tanks and soft-on-crime leniency.
Texas is a case in point. From 1978 to 2004, the inmate population rose 573 percent and the state's population increased 67 percent. [Ed. note: I wonder where that data came from?] With hard sentencing laws and some conservative judges, Texas built a "lock 'em up" reputation. The state has more than 155,00 inmates and leads the nation in putting prisoners to death.
But two years ago, Texas officials were faced with an alarming projection: By 2012, the state would need 17,000 more beds, which would mean building eight prisons at a cost of nearly $1 billion.

State Rep. Jerry Madden, a self-described conservative Republican, had just taken over as chairman of the Texas House committee on corrections. "I started asking questions," he said in a phone interview. To avoid building more beds for more prisoners, Madden said, "You either got to slow 'em going in, or speed 'em going out. And Texas is not a state that says, 'Speed 'em up going out.' "

Madden said he pulled together experts from conservative and liberal think tanks. "When it came to prison ideas that work, they all agreed," he said.

The changes, implemented in the 2007 legislative session, included more funding for drug and DWI courts. New rules shortened the average probation time from 10 years to five. With about 445,000 people on probation, the system had become "the Number One feeder to the prison system," said Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, a progressive group.

The state also ordered the parole board to raise its parole rate to an earlier number of 31 percent; the proportion of eligible inmates granted parole had slipped to 26 percent.

With those changes in place, prison population growth slowed to a trickle. From January 2007 until December 2008, Texas added 529 inmates to its total, a tenth of what was projected.

C. West Huddleston, chief executive of the Alexandria-based National Association of Drug Court Professionals, said Texas may have been in a better position than other states to make such dramatic changes because its prison growth was so much worse.

"Texas is a remarkable example of how to take control of an explosive prison population," he said. "If Texas can do it, any state can do it."

Via Doc Berman.

Hutchison seeks cell phone jamming authorization

2009-07-13T16:17:00.005-05:00

The US Senate Committee on Commerce, Science, and Transportation this week is taking up a bill by Sen. Kay Bailey Hutchison to allow cell phone jamming in state prisons, according to a press release received via email from state Sen. John Whitmire's office:

At the request of U.S. Senator Kay Bailey Hutchison, State Senator John Whitmire (D-Houston) will be in Washington, D.C. this week to express his support of Senator Hutchison's legislation allowing the jamming of cell phone signals within prison facilities.

In October, 2008, Senator Whitmire received numerous calls from a Texas death row inmate. The inmate had access to a cell phone which was shared with other inmates and used to make over 2,800 calls in less than a month. The following investigation resulted in a statewide prison lock-down, the discovery of hundreds of cell phones, and the indictment of the inmate and his mother and sister who helped provide the phone.

"Unfortunately, it took a death row inmate calling a State Senator to bring the issue to light and to force the prison system in Texas to recognize and begin to address the problem of contraband in our prisons," stated Senator Whitmire.

Senator Whitmire is scheduled to appear at 10:00 a.m., Wednesday, July 15th before the U.S. Senate Committee on Commerce, Science, and Transportation chaired by Senator Rockefeller. Also invited to testify are Steve Largent, head of the CTIA Wireless Association; Gary Maynard, Secretary of the Maryland Department of Public Safety and Correctional Services; and John Moriarty, Inspector General of the Texas Department of Criminal Justice.

MORE: See a blog post critical of the cell phone jamming bill, and also a letter to Senators Hutchison and Rockefeller opposing the bill from the public interest group Public Knowledge. PK makes the argument that public safety responders could be affected, and also suggests jamming signals in prison may lead to a slippery slope: "The introduction of legal cell phone jamming places this entire system at risk. History has shown that permitting the legal manufacture and sale of devices even for limited purposes will inevitably result in their becoming available on a mass consumer basis. For example, the use of wireless microphones in the broadcast bands is limited by FCC rule to a small number of licensed users and – in theory – strictly controlled to avoid possible interference with television viewing and other uses of the band."

AND MORE: See coverage from the Houston Chronicle.

Odds and Ends

2009-07-13T12:54:00.004-05:00

While I'm distracted today by a family tragedy piled on top of other scheduled duties, I wanted to point out a few recent news stories that deserve Grits readers' attention which might merit further commentary if I had more time or ability to focus:

Harris County Jail commentary
The Harris County Sheriff has a column in the Houston Chronicle today that's filled with catch phrases and feel-good commentary, but for the life of me I can't tell what position Sheriff Adrian Garcia is trying to take. The piece is full of odd statements like, "Programs to release inmates early must provide for the ability to monitor them to the end of their sentences," even though the Harris Jail's overcrowding problem stems primarily from pretrial detention, not sentenced offenders. He also failed to suggest solutions to increased jail overcrowding caused by expanded immigration detention.

Scarce little of what Garcia had to say suggested solutions for the main causes of overcrowding at the Harris Jail - too many inmates awaiting trial and too few guards to watch them. A recent Forbes magazine article on "America's Jail Crisis" points out that, "A stunning 25% of Harris County's annual $1.5 billion budget goes to law enforcement, with more than $750,000 a day spent on detainees. A shortage of guards means the jail shells out $35 million a year on overtime; some guards are topping out at $100,000 a year in total pay." Garcia called for seeking a "new consensus" on pretrial detention for nonviolent offenders, but his suggestions to solve the problem via "monitoring technology for ankle bracelets" would require substantial increased staffing the Sheriff doesn't have.

GOP won't go after Craig Watkins
Reporting on a conversation with the Dallas County GOP party chair, Dallas News columnist Gromer Jeffers says that "unless Ronald Reagan rises from the grave, Republicans won't recruit a candidate to run against District Attorney Craig Watkins ."

Webcams a waste on Mexican border
Governor Perry's much-ballyhooed webcam project on the Texas border has been a colossal flop, reported the El Paso Times:

In its first full year, the camera Web site drew more than 39 million hits and caught the attention of national and international media.

But interviews and reports the El Paso Times obtained indicate the nearly 125,000 "virtual Texas deputies" registered on the site led law enforcement to just eight drug busts and 11 arrests.

Feds fund reentry project for returning TYC youth in San Antonio
According to the San Antonio Business Journal:

The U.S. Department of Labor has awarded a $2.9 million grant to the Texas Youth Commission on a new initiative that will provide support services to 450 youth returning home from correctional facilities.

The new program will create what organizers are calling a “one-stop shop” for juvenile offenders, who will receive job counseling, education support, life-skills classes, mentors and community service opportunities.

The Texas Youth Commission is joining the Bexar County Juvenile Probation Department, the Texas Juvenile Probation Commission and San Antonio-based BCFS on this partnership. The grant will establish the program for 18 months with an opportunity to renew. BCFS will hire 31 new staff to work closely with the youth and oversee the curriculum.

These services will be offered at a downtown Youth Transition Center operated by BCFS. The center will house all transitional services including, employment strategies, case management, classes to help students earn their high school diploma or GED as well as training courses on non-violent methods for conflict resolution.

How accurate is visual memory?
CBS' 60 Minutes updated a story from March on the question of "How accurate is visual memory?" Those who make it all the way through the lengthy piece will be rewarded with excellent accounts of experiments by leading national experts exposing flaws with traditional police lineup procedures.

Improving forensic science
Peter Neufeld of the national Innocence Project argues in the Tennessean that a national forensic science institute is needed that would "stimulate research, develop best practices and set national standards for forensic work; help secure funding for forensic science programs; and provide guidance on how forensic test results should be conveyed to police, prosecutors, judges and juries."

Prisoners training psych service dogs
Prison programs have trained dogs for the blind and disabled, but according to the Wall Street Journal, now some military vets are benefiting from prison-trained "so-called psychiatric-service dog[s], a new generation of animals trained to help people whose suffering is not physical, but emotional."

Scent lineups by dogs don't pass the smell test

2009-07-13T07:14:00.002-05:00

In the wake of a report this spring by the National Academy of Sciences, more scrutiny than ever has been focused on untested and unproven forensic techniques. In that vein, yesterday, the Victoria Advocate ran a terrific story by reporter Leslie Wilber ("Does it pass the smell test," July 12) about the use of "scent lineups," a highly dubious forensic technique which, in Texas, is performed by just one man - Fort Bend Sheriff's Deputy Keith Pikett and his three bloodhounds. Wilber examines the technique closely and finds that it doesn't even enjoy national acceptance among police dog handlers:

The National Police Bloodhound Association quit endorsing the technique years ago, calling scent lineups unreliable.

"We don't even want to take a chance on that," said Doug Lowry, the group's president and a chief instructor.

Kevin Kocher, president of the National Bloodhound Training Institute, said he doesn't run lineups and finds them hard to defend.

Critics list several potential weaknesses of scent identification:

Handler or observer influence. Dogs are eager to please and can pick up subtle cues, especially if lineups are conducted on leash, said Steven Nicely, a police-dog handler-turned-defense witness. Handlers can read observers and unintentionally relay that information to the dogs.

"They learn about the pressure on the leash and the way you stand," Nicely said.

Sample contamination. Lineups typically include a suspect's scent and scents from five other people. The samples should all be fresh and about the same age because scent fades over time.

The pads should be handled carefully, to avoid contamination, and lineups should be conducted in clean rooms, without distracting smells. Human scent is best stored in glass jars at room temperature and out of direct light, Fulton said.

Handler reliability. Dogs can't talk, so handlers are their voice in the courtroom. Affidavits should be precise. Records should be detailed, showing errors and successes.

"As a dog handler, you'd better be acting as a scientist," Nicely said. "Otherwise, you're acting on myth and folklore."

And in what forensic lab does Pikett perform his procedures? He still "performs scent lineups daily in the parking lot of Pilgrim Journey Baptist Church in Rosenberg." Definitely no risk of evidence contamination in a church parking lot, huh?

One academic claimed that "The best-run scent lineups can provide results as accurate as witness identification lineups," but given how unreliable eyewitness identification can be, perhaps that's damning with faint praise.

Civil litigation in Victoria may soon subject scent lineups to much greater scrutiny than Texas criminal courts have ever afforded the technique. For example:

In one motion, [attorney Rex] Easley wrote Pikett's lineup was "so recklessly flawed that it violated the constitutional rights of the plaintiff. First, the dogs were leashed during the lineup, which fails to exclude handler input. Second, the site, the pads and the cans were contaminated with countless other scents so as to render it unreliable and impermissible to base a warrant upon."

Easley hired Bob Coote, who led a police-dog force in the United Kingdom and worked with scent dogs guarding the British border, to review Pikett's work in Buchanek's case. The lineup was "the most primitive evidential police procedure I have ever witnessed. If it was not for the fact that this is a serious matter, I could have been watching a comedy," Coote wrote.

Jeff Blackburn, chief counsel for the Innocence Project of Texas (and for a couple of more weeks, my boss), summed up my own view of Pikett's scent evidence with this pithy one-liner: "This is junk science. This isn't even science. This is just junk."

Pikett claims to have used his dogs in more than 2,000 criminal cases, which makes me wonder how many more false convictions are out there based on this type of unreliable pseudo-evidence?

MORE: See another excellent Victoria Advocate article giving lots more background on Pikett's career and techniques as a dog handler, which began as a hobby undertaken with his wife while he was a high-school teacher. Leslie Wilber is providing top-flight coverage on this story for a small-town paper.

See prior Grits coverage:

Unlikely Voices: Families of sex offender registrants organizing

2009-07-12T13:34:00.008-05:00

I was pleased yesterday to get to spend a little time with Mary Sue Molnar and the folks at Texas Voices (a group made up of families of registered sex offenders) at their statewide conference here in Austin. By the time I showed up in the late morning there were perhaps 60-70 folks there; I walked in just in time to hear most of their legislative update.

They were, of course, all devastated at Governor Perry's veto of legislation to allow defendants to petition judges in Romeo and Juliet cases to be taken off the registry. But this was the first legislative session they'd even been involved as a newly formed group and that same bill could probably pass again whenever it's somebody else's turn to be Governor. In the meantime, about 100 new people per month are being placed on Texas' sex offender registry, Molnar reported to the group.

I enjoyed meeting quite a few readers and appreciated the invitation.

For a variety of reasons, despite the fact that they theoretically represent a lot of folks, inmate family groups have enjoyed notoriously little success pushing their interests at the Texas state capitol, much less families of sex offenders. But Texas sex offender registration laws are now so over the top - to the point where a registered sex offender can't legally drive across town for fear of passing a school or community center and violating parole - that I sense a growing bipartisan consensus at the Legislature that this is an area ripe for reform.

Though being tuff on sex offenders is all the rage among politicians at election time, a lot of folks around the Texas capitol from both parties will agree with you in private that the registry fails to adequately distinguish between dangerous rapists and pedophiles and people who committed less serious offenses. Indeed, this year's vetoed legislation to allow judges to approve de-registration in Romeo and Juliet cases was filed by Republican Todd Smith, an indication that concerns about overreach in this area don't necessarily fall along party lines.

The group at Texas Voices have a tough row to hoe, and for the family members it's not one they've chosen. I'm glad to see them getting organized. Nobody else is going to fight these battles for them and the issue deserves more focused advocacy than its heretofore received.

Rapid cleanup best graffiti antidote

2009-07-12T07:30:00.003-05:00

I wanted to point readers to several interesting, recent news stories related to graffiti, particularly regarding the issue of rapid cleanup, which I've long believed is the single most effective strategy a city can undertake to combat graffiti:

Rapid cleanup best graffiti antidote
Here's an interesting little profile of a code enforcement employee in Chandler, AZ, a Phoenix suburb, whose full-time job is cleaning up graffiti, which he is usually able to remove within 24 hours of a new report. The stats jumped out at me: In 2008, this one man erased graffiti at 1,847 different spots. Do you think Chandler police made even 1% as many arrests? Probably less. Harsh penalties may make grant the public a cathartic moment of gloating satisfaction when punishing the small handful of taggers who are caught, but rapid cleanup actually provides redress to victims of vandalism and is a greater deterrent to graffiti than a one in a thousand chance at being arrested.

There's an app for that
Boston has proposed a cool idea, allowing citizens to report graffiti and potholes directly from their iPhone. From the Christian Science Monitor:

Soon the City of Boston will adopt the first iPhone app in the nation that will allow residents to voice municipal complaints and concerns via iPhone. Rather than calling a 24-hour hotline, Bostonians will be able to snap photos of potholes or graffiti in their neighborhood and send it directly to Boston’s City Hall. The app, Citizen Connect, which was dreamed up by mayoral aid Nigel Jacob, will use the iPhone’s global positioning system function (GPS) to identify a citizen’s exact location when they submit a complaint. It can be downloaded for free once it’s released in the iTunes App Store, and will also provide users with a tracking number so they can keep tabs on their complaint’s status.

NYC would shift graffiti cleanup burden to city
New York City has done a tremendous job with graffiti reduction compared to, say, Los Angeles, even though, for some reason, L.A.'s draconian git-tuff tactics have been more popular with anti-graffiti agitators in the flyover states. New York's main focus has been rapid cleanup and this report lets us knonw about a new proposal to streamline how quickly graff can be removed from private property. According to AP, "The new legislation would give the city authority to remove graffiti unless a property owner says otherwise. Officials say the change allows property owners to keep graffiti they consider artwork, and speeds up the removal of vandalism."

Their graffiti problem in NYC is a little bigger than in Chandler, AZ: "So far in 2009, Bloomberg's graffiti removal team has cleaned an estimated 2.5 million square feet of space at nearly 4,000 sites. Other city agencies have also cleaned graffiti, for a total of 6 million square feet removed to date in 2009."

Arrest him before he inspires again
Unrelated to the rapid cleanup theme, but I thought this was an ironic example of prosecuting someone purely because of their celebrity. Reports Reuters:

Shepard Fairey, a Los Angeles artist whose "Hope" image of Obama hangs in the National Portrait Gallery in Washington, was arrested in February while traveling to Boston's Institute of Contemporary Art to kickoff his first solo exhibition. ...

Fairey pleaded guilty to one count of defacing property for placing a poster on an electrical box in 2000 and to two counts of destruction of property in 2009 for placing a sticker on a traffic sign and affixing a poster to a condominium.

It's one thing to pursue Fairey for recent acts of vandalism, but a graffiti charge for "placing a poster on an electrical box in 2000"? How is it remotely possible the statute of limitations hasn't long ago run out on that offense? And is there any reason to prosecute him for it besides pure spite? The ironic part is that Boston officials hope to punish Fairey, but there's little doubt the more significiant function of this spectacle will be to garner Fairey more publicity and boost his art career.

Who do you think has done more to reduce graffiti? The lone guy in a pickup in Chandler or all the cops, jailers, prosecutors, clerks, bailiffs, the judge, etc., in Boston whose taxpayer-funded time was spent processing Shepard Fairey through the justice system? Which tactic reduced graffiti more and gave taxpayers more bang for the buck?

Geo Group secretly snagged forensic psych hospital contract in budget conference committee

2009-07-11T08:12:00.005-05:00

Amazing! Emily Ramshaw at the Dallas News reports that legislators inserted a provision into the state budget in conference committee to pay for a privately-run psych prison in Montgomery County to be run by the Geo Group, even though no state agency requested it and the idea didn't make it through the budget process in either chamber. According to Ramshaw ("Troubled prison firm's deal for new psychiatric hospital raises questions," July 11):

Lawmakers inserted an earmark into the state budget to fund the future Montgomery County facility starting in 2011. But they said they didn't know until this week that the county had selected the GEO Group to operate it, although GEO lobbyists were pushing for it as early as February.

The new facility came as a post-session shock to mental health advocates, who acknowledge the need for it. But they say they weren't informed about it and never would have signed off if they knew Florida-based GEO was operating it.

This is a complete surprise to me, and I'm sure to many others who watched Texas' legislative process closely. That said, I've been calling for years on this blog for the state to invest more money in competency restoration so mentally ill inmates don't sit around for months in the jail waiting for state hospital beds to open up. But the Department of State Health Services had chosen to address that problem by funding and promoting outpatient competency restoration, not building more inpatient beds, and they didn't ask for this facility. Again from Ramshaw:

state lawmakers say the psychiatric facility, which by 2011 is expected to house more than 100 criminal offenders awaiting trials or competency findings, will solve a major backlog. The Montgomery County jail has hundreds of inmates awaiting mental health treatment. The nearest state forensic mental hospital is more than 100 miles away, and when a bed opens up, it takes at least two deputies to take an offender there.

"It's a problem we sorely need to address, instead of leaving people who need mental health care in prison," said Sen. Bob Deuell, R-Greenville, one of the Senate's budget writers.

But the budgeting process and the choice of contractor have raised some eyebrows.

Department of State Health Services officials, who oversee psychiatric care in Texas, say the Montgomery County facility was not something they requested funding for in the budget. It was added to the budget in conference committee.

Mental health advocates, who track psychiatric hospital legislation closely, say they never heard any public discussion about it.

Me either! Much of Ramshaw's story details unfortunate incidents in the Geo Group's recent Texas past, several of which are listed in this sidebar accompanying the story, and it's true there's a long list of problems.

Particularly worrisome, in some instances Geo allegedly hasn't provided all the services its contracted for, which would be especially troublesome in a mental health environment. According to a DOJ report last year, in general "private prisons appear to do a poorer job at providing meaningful programming for prisoners than state run facilities."

Equally concerning, guards at Geo units are less well trained than at TDCJ. According to the company's 10-K, Geo guards receive just 160 hours of training before being assigned to a facility compared to 300 hours for state prison guards. That makes me wonder whether COs at the Montgomery County mental health facility would receive adequate training for what's sure to be an exceptionally challenging gig.

Interestingly, legislators all over the state this week are being asked questions about the Geo Group for which they find themselves lacking good answers. In South Texas, Geo was accused in court this week of misleading shareholders about whether it was "exonerated" for an ugly 2001 murder of an inmate for which the company lost a major civil suit. Geo's counsel in the case is the law partner of a Texas state legislator, according to the Brownsville Herald ("Sanctions against the Geo Group sought," July 6):

The family of the late Gregorio de la Rosa Jr., killed by two inmates in 2001 in a jail facility then-operated and managed by Wackenhut in Raymondville under contract with the state, is seeking the sanctions from the Thirteenth Court of Appeals.

The family claims in court records that GEO "continues its disgusting display of disrespect for Texas' civil justice system," by lying to the government, investors and the business community in an April 30 report filed with the U.S. Securities and Exchange Commission (SEC).

State Rep. Rene O. Oliveira's firm, Roerig, Oliveira & Fisher LLP of Brownsville and McAllen, represents The GEO Group.

Asked if the prison group lied and to comment about the claims, Oliveira, D-Brownsville, said, "I'm not qualified to answer that question. I have never done one minute of legal work for them."
"I am not even familiar with the case. It is being handled by my partner, David Oliveira; nor am I familiar with the allegations. ... David Oliveira was not available for comment.

Geo is clearly a well-connected company - getting your project inserted into the conference committee on the budget when neither chamber nor the contracting state agency wanted it is no mean feat, and it's not everybody who finds a state legislator dodging questions about your company's alleged misconduct in the newspaper.

At least the Montgomery County facility won't open immediately and there may still be time for belatedly vetting the proposal before the system actually comes online.

UPDATE: A commenter points out that Montgomery County commissioners last year made a conscious decision to substantially overbuild their jail beyond current needs on the assumption that the facility, to be run by the Geo Group, would make enough profit from immigration detention to "spare taxpayers additional costs." One supposes that immigration detention is no longer paying the bills if the county and Geo are seeking to use the Montgomery County Jail for competency restoration beds! I wonder if that's the facility they're talking about?

See other Grits posts related to the Geo Group:

'Legislative report says Perry can issue posthumous pardons'

2009-07-10T13:27:00.001-05:00

The title of this post is also the headline of a Fort Worth Star-Telegram story in which we learn that the Texas Legislative Council thinks Governor Perry has authority to issue a posthumous pardon to Timothy Cole, who died in prison before DNA testing could finally exonerate him last year, without passing a constitutional amendment. Reported the Startlegram:

A new state legislative review says Gov. Rick Perry has the power to issue posthumous pardons — and should issue one in the case of Fort Worth’s Tim Cole.
This year, a state judge exonerated Cole, who died in prison in 1999, of raping a Texas Tech student. DNA tests cleared him of the crime, and his family wants the governor to formally pardon him.
State Sen. Rodney Ellis, D-Houston, said Wednesday that a new report from the Texas Legislative Council shows that the governor has power to issue that posthumous pardon.
Perry, who has supported the family’s effort to get a pardon, has maintained that an old state attorney general’s ruling dictates that he must first have authority from Texans — through a constitutional amendment — to sign off on such a document.

My take on this is simple. Lege Council has given Governor Perry plenty of cover to say it's legal to issue Tim Cole a posthumous pardon and go ahead and do so.

The very worst that could happen is that, if somebody sued (and in this case, no one with standing has threatened to sue or has any reason to do so) sometime down the line, perhaps years from now when he's not even in office, the courts could later say "no." If all that happens and some future court disagrees with the Lege Council's interpretation, so be it. By that time the full Legislature will meet again and they can pass a constitutional amendment all nice and formal like.

It's the right thing to do, it will give the family solace, and it will show that Texas cares about the reputation of the innocent people it has exonerated.

Governor Perry, Pardon Timothy Cole!

Oversight: Why so little MSM coverage after Texas abolished LWOP for juveniles?

2009-07-10T10:25:00.006-05:00

Doug Berman at the Sentencing Law & Policy blog made an observation on Wednesday which hadn't occurred to me about the surprising lack of media coverage that resulted after Texas abolished "life without parole" for juveniles convicted of capital murder. (The bill was SB 839 by Hinojosa/McReynolds, signed into law by Gov. Perry on June 19.) Berman writes:

In addition to being quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers, I was troubled that I had completely missed this interesting and important story about a change to Texas justice.
I then spent some time this morning looking for press reports about this new legislation and/or materials about this notable Texas reform from various public policy groups that focus on juvenile justice issues. Disappointingly and aggravatingly, I could not find ANY significant media coverage or materials from public policy groups about this reform to Texas justice. (Grits had a few helpful posts on bill here and here and here, but these posts only confirmed my sense that this Texas story deserves a lot more attention.)

The troublesome silence about the Texas reform is especially notable because many folks are now focused on juve LWOP issues because of the Supreme Court's decision to consider the constitutionality of two non-murder) juve LWOP cases from Florida. And, as death penalty fans know, state legislative developments are central to the Supreme Court's modern Eighth Amendment jurisprudence. I sure hope that folks writing briefs in the SCOTUS cases of Graham and Sullivan are aware of this recent important reform in Texas justice even though it has been overlooked and ignored by the media and public policy groups.

I responded in the comments to add more background about the bill's passage, so check SL&P's post for more details. (I also gloated a bit that even if the MSM hadn't covered it, "Grits readers knew about it.")

Doug's right, though, that there appears to have been little or no MSM coverage of this bill, even though, as I wrote here, it probably had "the most significant national implications" of all Texas' criminal justice reform legislation passed this session. (If you've seen coverage I'm unaware of, please provide the URL via email or the comments.)

Even among advocacy groups, like Doug I could find hardly anything published about SB 839 on the web except this written testimony (pdf) from the Texas Criminal Justice Coalition. At the committee hearings in both chambers, representatives from TCJC, ACLU and the Texas Criminal Defense Lawyers Association were the only speakers in favor. It seems like now that the death penalty has been off the table a few years for juveniles, all those who might normally show up to engage in "culture war" tinged shouting matches didn't bother anymore, one way or another.

IMO, the bill passed for two reasons: The legislative skill of its sponsors and a split among those who would typically be its strongest opponents. The Harris County DA's lobbyist spoke in opposition to SB 839 on the Senate side, but they backed off the bill in the House after Williamson County DA John Bradley endorsed Hinojosa's proposal. As I wrote in SL&P's comments, "the lack of strong DA opposition combined with unlikely support from a typically-tuff DA was what made the bill sail through. That seemed to be the interest group whose support was most critical for passage."

Once John Bradley gave legislators cover from their "tuff on crime" flank, they were free politically to vote their conscience and the vast majority didn't think LWOP for juveniles was the right thing to do. That wouldn't have been enough if there'd been anyone actively opposing the bill, but without any formal opposition, SB 839 never became the flashpoint of confrontation one might have expected. (The bill passed unanimously in the Senate and 101-37 in the House.) SB 839 also enjoyed just a bit of luck, since many other Senate bills died in the House when it melted down at the end of session over voter ID.

That explains why (I think) SB 839 passed, but it doesn't explain why the mainstream media hasn't covered the story with more vigor. Maybe it's because there was no conflict. Or perhaps the reason, simply, is the overall decline in the number of reporters covering the capitol. There are only about half as many as there were a couple of decades ago, many of those are part-tme, and a lot of stuff just doesn't get covered. Perhaps readers have other theories. With the Supreme Court poised to issue a national decision on the constitutionality of juvie LWOP, the story has implications that reverberate well beyond Texas' borders.

In any event, don't forget: You read it here first.

SA jail shrink: Free-world services for mentally ill a must

2009-07-10T08:48:00.007-05:00

The San Antonio Express-News ran a lengthy and informative profile this week of Dr. Sally Taylor, head of psychiatric services at the Bexar County Jail ("Doc puts inmates mental health first," July 5). In particular the reporter (whose name I could only guess at pronouncing) highlights Taylor's role in passing new legislation to allow jails to force mentally ill patients to take their psych meds. The article opens:

It's become a given among mental health professionals that jails are now the largest psychiatric hospitals in the country. In Bexar County, as in others around the nation, roughly one out of four inmates suffers from some kind of mental illness.

That translates into some 800 inmates at the county jail being treated for a psychiatric disorder — hundreds more than patients being cared for at the San Antonio State Hospital.

Dr. Sally Taylor, administrator of psychiatric services at Bexar County Jail, has been on the front lines of the struggle to treat and rehabilitate mentally ill prisoners. ...
By all accounts, Taylor has been a tireless advocate for the mentally ill in San Antonio, working with local advocacy groups to reduce stigma about mental illness, encourage churches to address mental disorders and promote education and community awareness about mental disease.

Recently, she worked with other mental health groups on legislation to compel mentally ill prisoners to take their medication.

This is important for those who have been found incompetent to stand trail and are in jail awaiting transfer to an inpatient competency restoration program.

This will allow treatment for those with severe mental illness who are a danger to self or others or who lack the capacity to understand the risk of refusing treatment, and who have been excluded from court ordered treatment simply because they are located in jail.

It might even help some inmates enough that they could enter outpatient competency restoration.

The bill was signed into law by Gov. Rick Perry.

Taylor bottom-lines the problem of mentally ill offenders at the jail for the Express-News, arguing that only expanded free-world services can solve it. She told the paper that:

much more needs to be done with regard to the long-term needs of mentally ill lawbreakers.
“We do a great job recognizing the (mentally ill) at the front door, but the problem is the back door,” she said. “Bexar County is one of the lowest counties in per capita funding for mental health in Texas, and Texas is 48th or 49th out of the 50 states in terms of funding for mental health.

“You can do all the screening and all the jail diversion that is possible, and I'm completely in favor of that, but you've got to have services for people when you send them out in the world.”

Too often, she said, released mentally ill inmates confront a host of obstacles on the outside that hobble them in being compliant with their medical care. And then they re-offend.

“If somebody comes to the jail because it's a place to sleep and eat, you want to be able to provide that on the outside,” she said. “We don't have enough residential units, we don't have enough housing, we don't have enough supported employment, we don't have support services, we don't have intensive case management. So we drop the ball.”

Cameras in patrol cars benefit no one if not filming

2009-07-10T07:57:00.001-05:00

Austin police have cameras in most patrol cars which have frequently proven to be an invaluable boon, but now the department is struggling to ensure its officers routinely use them. According to an editorial in today's Austin Statesman ("Value of getting it on the record, July 10"):

This is a very good time for Austin police officials to review the department's patrol car camera policies to determine whether they need to be strengthened, clarified or revised.
After several tragic incidents, this community and police officers have learned the value of video cameras in police work, and we're glad that most officers have become comfortable with them.

Video cameras have vindicated any number of officers wrongly accused of bad behavior. And they also have helped the department identify officers who are abusing their authority. But one thing we learned this week from Austin Assistant Police Chief David Carter is that cameras also are helpful as a training tool. Officers can view themselves in action and make improvements in how they deal with the public. That's an added benefit.

As in the past, the review of the camera policy was triggered by tragedy. The effort comes about two months after the fatal shooting of Nathaniel Sanders II by senior officer Leonardo Quintana, whose patrol car camera had not been turned on when he shot Sanders. One of two backup officers arriving at the scene in the parking lot of the Walnut Creek Apartments on Springdale Road also had not activated his camera. ... It was the third lethal-force incident in recent years that had not been captured on patrol car cameras.

Most Texas cities installed cameras in their patrol cars after the passage of Texas' racial profiling statute in 2001 which allowed them to gather fewer data elements at traffic stops if cameras were installed. But "installed" isn't the same as "turned on when I shot the guy." (City officials say they can't afford equipment upgrades that would make filming during encounters more automatic.)

I'm glad to see Chief Acevedo belatedly reviewing the policy and hope he decides to require officers to record encounters more comprehensively, establishing swift and sure punishments when they fail to do so - even on routine patrol, not just after critical incidents. "The camera was turned off" has become a too-routine excuse after high-profile APD shooting incidents, and for too long Austin PD seems to have tolerated a departmental culture where many officers turn their cameras off in situations where confrontations or violence may occur. But that's exactly when the cameras should be on.

Tracking new federal stimulus money for Texas law enforcement

2009-07-09T10:55:00.010-05:00

I was scanning the Texas Register today, which is something I don't do often enough (lots of blog fodder), and ran across an interesting pattern: Several regional COGs (Councils of Government) have been meeting this week, many of them yesterday, to evaluate recommendations for spending the enlarged Byrne grant fund that was part of the federal stimulus package.

A helpful gal from from the Deep East Texas Council of Goverments filled me in on what was happening with the federal criminal stimulus money from a local perspective. The process began, she said, with eligible agencies - police, sheriffs, juvenile probation departments, etc. - sending proposals directly to the Governor's Criminal Justice Division. The governor's office then forwarded all proposals from their region to the appropriate COG and asked them to prioritize them (the Deep Easts Texas COG will receive $870,796.12, she meticulously informed me.)

For many years, virtually all federal Byrne grants in Texas went to pay for regional drug task forces like the one in the infamous Tulia drug stings or the Hearne task force whose drug sweep in a black neighborhood inspired the movie American Violet. Now, though, the money is much more widely dispersed, with 46 drug courts receiving funding in 2008 according to the annual report (pdf) from the Governor's Criminal Justice division. The Governor's office received just more than $7.5 mllion in federal Byrne grants to distribute in 2008, an amount that had declined every year under President Bush, who opposed the program.

I asked around and was told the practice of vetting Byrne grant proposals through the COGs is a new, one-time mechanism for deciding how to spend the criminal-justice related stimulus grants. In years past, Byrne spending has been exclusively the Governor's prerogative. After the regional drug task forces were gone, some Byrne money went to projects like drug courts and diversion programs while a bunch of it went for the Governor's much-ballyhooed border security grants.

Now, though, we're talking about a whole lot more money. Last year, the Governor only handed out $7,569,174 in Byrne money. This year, on top of that usual amount, the Governor received $90,295,777 in federal Byrne Justice Assistance Grant money. Of that, Perry is distributing $40 million through the COGs and will decide how to spend the remainder through his own Criminal Justice Division. Which raises a sticky political question:

Should the Governor allow COGS do decide how all the extra Byrne stimulus money will be spent, or was Perry right to hold back the majority of criminal justice stimulus funds for spending on his own priorities? That's certainly his prerogative, but I'm not sure he has a better plan than the locals for how to spend that money.

I sent requests via email to several of the COGS for examples of what's being requested, and also emailed an open records request to the Governor for a master list of Texas projects seeking Byrne grant funds. I'll keep tracking this process as it moves forward. That's a lot of new pork to distribute and I hope the Governor spends it wisely.

Wednesday Morning Link Dump

2009-07-08T10:27:00.001-05:00

Here's some good stuff to read on Grits' usual topics while I'm focused elsehwere this a.m.:

For starters, check out "Public Intoxication = Police Brutality?," a meditation on the Rainbow Lounge raid and Texas PI statutes from Robert Guest at the Dallas Criminal Defense Lawyer's Blog. Robert can also tell you "How much does marijuana cost in Terrell?"

Doug Berman at Sentencing Law & Policy says Judge Sonia Sotomayor will be a "moderate" on criminal justice and more pro-prosecution than Justice Souter who she will replace. He's also impressed that Texas eliminated life without parole for juveniles. See also from SL&P: "In prisoners wake, a tide of troubled kids." He also turns us on to "Are humans too cruel to be kind?," at the magazine New Scientist, a fascinating piece about which I may have more to say later.

Here are three more posts I'd recommend, a couple of which are also SL&P references:

"Mass Imprisonment: Birth of a social problem," PrawfsBlawg
"The 5-4 Cases in Crim. Law," Crime & Consequences
"Courting Confrontation," Simple Justice

In a link roundup this morning, Radley Balko included the following short item about using Tasers for noncompliance instead of self-defense:

Police chief tasers 14-year-old girl in the head after she ran from her mother. The kid hadn’t committed any crime. The chief told a local news station, “he does not regret his actions. He adds he warned her several times and had no other choice when she did not listen to him.” So you shoot electrically-charged barbs into her head? God help this guy’s kids.

I clicked on the link literally thinking to myself, "Don't be Texas, don't be Texas, don't be Texas , and ... Whew! Nope! Just across the border in Tucumcari, New Mexico! That's a relief, I guess. ;) I've met many Texas police chiefs I respect, and also a few who perhaps weren't the brightest bulbs in the room, but none who ever struck me at that aggressively stupid.

And finally, the Dallas News quoted some highly dubious "expert" in a story this morning about two court settlements approved by the commissioners court over inadequate healthcare in the Dallas county jail:

"They're definitely acknowledging that there was a problem. They'll settle when they think they'd get a worse outcome when they go to court," said Scott Henson, a criminal justice expert.

Hmmmmm ... would it kill you to publish the URL? I link to those guys all the time! ;)