Thursday, March 25, 2010

Private jail contractor dumps Johnson County: Promised immigration beds never materialized

As the Webb County Sheriff pushes construction of a massive new jail for the purpose of housing federal immigration prisoners, their commissioners court should look to Johnson County to understand how that might not pan out like they hope. According to a story in the Cleburne Times-Review ("CEC bailing out," March 24):

Johnson County Law Enforcement Center should have a new private subcontractor no later than Sept. 15 after the recent decision of Community Education Centers to end its agreement with the county to run the jail.

CEC signed a three-year contract with the county in September 2008.

CEC used an escape clause, County Judge Roger Harmon said Tuesday, extending the county six months notice of contract termination.

CEC warden James Duke could not be reached for comment, but CEC officials told Johnson County commissioners that the corporation was losing money in its operation of the jail.

Johnson County entered the contract with CEC on the assumption that a near-endless wave of immigration detainees would fill up as many jail beds as they could build. As it turned out, that wasn't the case:

CEC expected to make the bulk of its money by filling unoccupied beds with immigration detainees.

“The average population is 450 to 500,” Duke said last year. “There are empty beds. That’s attractive to us. We take those empty beds and help the county get contracts with other entities such as Immigration Customs Enforcement. Corrections 2 [block] has 176 beds. We put ICE detainees in those beds. ICE pays Johnson County, and the county reimburses us.

“The county makes $5 off every detainee. The county makes money, and we make money.”

That wasn’t the way it worked out, Harmon said. ...

“When CEC contracted with us, we were running about 600 inmates per day,” Harmon said. “Nobody knows why, but the numbers recently have been running around 400 per day. Incarceration numbers are down statewide and nationwide, from what I understand. You wouldn’t think it would be that way with high unemployment, but it is.”

As of March 1, according to the Texas Commission on Jail Standards, Johnson County had just 338 inmates in the jail, so the supposed profitmaker has now become a money suck. By contrast, Cameron County entered into a similar scheme and encountered the opposite problem: Their jail has so many federal prisoners they now must send pretrial detainees three hours away to be housed by other counties at higher costs. So Texas counties have been burned by these deals coming and going. It's never as simple or cheap as it sounds up front when it's pitched. Never.

RELATED: Just to have mentioned it, Texas Prison Bidness had a couple of recent posts related to the private prison contractor now leaving Johnson County:

Excellent coverage of Travis County specialty courts

From Jordan Smith at the Austin Chronicle, check out this must-read series of stories on Travis County specialty courts:
A key criticism of specialty courts from the National Association of Criminal Defense Lawyers was voiced in the first bulleted article: "'Judges make poor social workers.' The money spent handling social issues in the courthouse would be better spent on front-end services that might make it less likely that these populations would actually end up in trouble with the law."

That's undoubtedly true. But we live in an era where legislative bodies have sought to impose criminal justice solutions on common social problems - from addiction to mental illness - that would be more wisely addressed in other arenas. Until that changes, specialty courts which rely on strong-probation best practices IMO will in many cases continue to get better results and provide better options for defendants and, ultimately, the state than the traditional adversarial system.

NACDL also fears that collaborative approaches favored in such courts in some ways diminish defendant's rights, and while I can see their point, on that question I think the jury's still out. After all, in a plea-mill type system such as ours where less than 2% of all cases go to trial, those adversarial rights aren't getting routinely exercised anyway.

Plus enforcing those rights via the criminal defense bar hasn't stopped the conviction of innocent people, mass incarceration or the erosion of civil liberties. The adversarial system is important, especially when the lawyers are competent and adequately resourced, but it's not the only possible model nor the end-all be-all of justice, nor has it always worked as well as one might hope. That's partially why, as Jordan Smith notes, "in Austin there are surprisingly few" critics of specialty courts: It's not like the old methods were working so damn great to begin with.

Time to test Skinner DNA evidence

Karl Keys at Capital Defense Weekly sums up the news of the Supreme Court's stay in the Hank Skinner case aptly: "As always, Rob Owen rocks. My suggestion to the Texas AG’s office, test the material now & moot the issue if Mr. Owen & crew are wrong."

That's exactly right. If SCOTUS was going to let Skinner be executed without the evidence being tested they'd have let it happen last night. This matter could be put to rest in 30 days time one way or another.

It's time to test the evidence - past time, really. Do it to save face for the state of Texas, if nothing else. Don't further encourage the impression that Texas judges and prosecutors are biased, bloodthirsty, and can't manage capital cases without killing an innocent person. In D.C. they're holding panel discussions on the topic, why give fodder to those stereotypes?

A footnote: Governor Perry failed two important tests yesterday by failing to commute Skinner's sentence and forcing the Supreme Court to manage his business:

First, after he signed Timothy Cole's posthumous pardon last week, the open question remained, "Has the Governor learned anything from this experience about making sure innocence claims are fully vetted?" In the Skinner case, we got a quick answer: "No way." The attitudes that allowed innocent people to be convicted and potentially executed on his watch are still firmly entrenched.

Second, for a Governor so full of himself when he champions "states rights" and the Tenth Amendment, in this case he ignored the adage that with rights come responsibilities. Texas should be handling its own business on the Hank Skinner case, SCOTUS shouldn't have to intervene over and over because neither the Governor nor the courts have the courage to do the right thing. Governor Perry is calling for expanded state power but simultaneously demonstrating that he can't be trusted to use it wisely - that even matters of life and death will be measured according to their political calculus as opposed to the interests of justice.

If you don't want federal courts running your business, Governor Perry, then act more responsibly and it won't so often be necessary.

RELATED: Mark Bennett has a terrific breakdown of the procedural details of the writ under consideration at SCOTUS.

Wednesday, March 24, 2010

Most Huntsville school board members work(ed) for TDCJ

I'd not realized until reading this post from the Medill Innocence Project on the Hank Skinner case that Texas Board of Pardons and Paroles Chair Rissie Owens is also an elected member of the Huntsville school board. Upon further review, though, she's definitely among their trustees according to their website, which somewhat oddly lists her occupation as "Protective Servicesman. Texas Board of Pardons and Paroles."

I'm not surprised, upon further reflection, to discover Owens indulging her local political ambitions. She's well-spoken, charismatic, and tough enough to stand her ground in a fight. She might well make a damn good school board member. Though I disagree with her on a number of key points on parole policies, I've always thought she'd make a strong political candidate. I just didn't know she'd already run for office and won. I guess I considered her slot chairing the parole board to be pretty much a full-time job, and then some.

Rissie's husband, Ed Owens, for years was a TDCJ administrator overseeing the institutional division which operates state prisons, then was appointed conservator of the Texas Youth Commission at the height of its turmoils before retiring soon thereafter. Putting all that together, that makes Ed and Rissie Owens quite the Huntsville power couple!

Upon further investigation, four of the seven Huntsville school board members have current or past relations with the prison system. In addition to Owens, Pamela Baggett is Senior Warden at the Holliday Unit, and David Standlee and Riley Tilley are current and former TDCJ employees, respectively.

RELATED(?): In the comments, somebody provided a link to a provocative but thoughtful essay from the Prometheus Institute (which I'd never heard of), titled "Ten Reasons Why America's Schools Are Like America's Prisons." In Huntsville, it follows, there are 11 reasons, since the same people are running both institutions. ;)

Petitions vs Dallas constable, Hockley Sheriff highlight obscure civil removal process for county pols

After I wrote in support of Dallas county prosecutors filing a civil removal petition in Dallas against Constable Jaime Cortes, a Grits commenter opined that it "would be interesting to read a post about that obscure recall process." I agreed, I just knew nothing about it and had never heard of it being used before. Having been made aware of it, though, I couldn't help but notice its remarkable recent use in a case involving the Hockley County Sheriff. Reports AP:
A West Texas sheriff facing removal from office for alleged incompetence and official misconduct testified Tuesday that he believes the county official seeking his dismissal was out to get him.

Christopher Dennis, the county attorney in Hockley County, filed a complaint in August seeking Sheriff David Kinney's removal.

"Definitely out to get me; I don't know why," the suspended sheriff told jurors. "I thought it was very improper to put the investigator who helped him put this (case) together" in as Kinney's interim replacement. "He was part of putting all this garbage together."

Kinney's comments came during questioning by plaintiff's attorney George Thompson on the opening day of the sheriff's civil trial in Levelland, about 30 miles west of Lubbock. In a civil trial, the plaintiffs can call the defendant as a hostile witness.

In his opening statement, Thompson told jurors that Kinney oversaw a sheriff's office that had drugs and weapons in "drawers all over," instead in the property room.

He also told the panel that Kinney had lied to federal investigators looking into allegations that his chief deputy was involved in a methamphetamine ring. Kinney told investigators he would not tell Gordon Bohannon he had spoken with them about their probe.

"I think the evidence is clear he did inform" the chief deputy that he had talked to the FBI, Thompson said. "When you add it up, time and time again it's gross negligence, gross ignorance."

Kinney testified that he had told Bohannon about his talk with federal authorities. He also said he "did not agree" that his actions in supervising Bohannon and other deputies showed he was incompetent.

Bohannon is awaiting sentencing after pleading guilty to federal charges for his part in a meth trafficking ring.

Court documents show Kinney claims he was unaware of the meth ring involving his deputies. He has vowed not to resign, saying he did nothing wrong.
I've no idea how common this procedure is, but it's a potent tool against corruption in the hands county prosecutors that, until recently, I had no idea they possessed. Civil removal proceedings ... who'da thought?

For the record, here's the law governing civil removal petitions for county officials. It's a bizarre little statute in the Local Government Code I'd never noticed before.
Sec. 87.013. GENERAL GROUNDS FOR REMOVAL. (a) An officer may be removed for:
(1) incompetency;
(2) official misconduct; or
(3) intoxication on or off duty caused by drinking an alcoholic beverage.
(b) Intoxication is not a ground for removal if it appears at the trial that the intoxication was caused by drinking an alcoholic beverage on the direction and prescription of a licensed physician practicing in this state.
Those are remarkably broad categories. Parts (a)(3) and (b) about off-duty intoxication being grounds for removal except for drinking on the "direction and prescription of a licensed physician" are particularly odd aspects of the law. Is inebriation something being commonly prescribed among leaders in county government? I wasn't aware. As John Lennon observed, these are strange days indeed.

As for "incompetency," I can hear the wags already saying that if that justifies removal then they should pretty much all go. For the record in this statute:
"Incompetency" means:
(A) gross ignorance of official duties;
(B) gross carelessness in the discharge of those duties; or
(C) unfitness or inability to promptly and properly discharge official duties because of a serious physical or mental defect that did not exist at the time of the officer's election.
I had no idea "gross ignorance of official duties" was grounds for removing county officials. That happens all the time! How many district judges have I known who, once elected, didn't realize they automatically sat on the board of directors of the local probation department? How many county commissioners are all about roads in their campaigns, only to get elected and spend all their time talking about jail functions they know nothing about? Politics is a learn-on-the-job kind of deal and to some extent, "gross ignorance" is the price of term limits and anti-incumbent voter sentiment.

Still, I didn't realize average citizens could initiate such a potentially powerful petition against county officials. A district judge must then sign off and after that, it's up to the county attorney as to whether the case is vigorously prosecuted (not the District Attorney, according to LGC 87108[d]). After that, it's up to a jury. But as demonstrated by this case from Hockley County, removal petitions represent a potentially robust source of relief when confronted with allegations of corruption, misconduct, or even non-doctor sanctioned drunkenness, for whatever reason.

I'm interested to learn more about this mechanism; particularly how often it's been used in the past, under what circumstances, and how many of those efforts succeeded.

'The Rights of Minors in the American Criminal Justice System'

The title of this post is the subject of an upcoming one-day symposium at the UT law school in Austin about which I received notice from several different sources this week, but my favorite was from a juvenile probation director who instructed me, "get your ass down there and listen then report to we great unwashed folk out here in the boondocks." Who could pass up an invitation like that? Here are the details:
Please join the Texas Journal on Civil Liberties and Civil Rights in conjunction with the American Journal of Criminal Law for a symposium on Juvenile Justice: the Rights of Minors in the American Criminal Justice System next Monday, March 29, 2010 starting at 9:00 a.m. in the Eidman Courtroom, at the University of Texas School of Law. The School of Law is located at 727 E. Dean Keeton, Austin, TX 78705. The event is free and open to the public.

List of events:

9:00-9:10: Welcome

9:15-10:30 Meeting the Needs of Juvenile Offenders: The Legal and Policy Response

--featuring Deborah Fowler of Texas Appleseed, Richard Lavallo of Advocacy Inc., and Marc Levin of Texas Public Policy Foundation

10:45-11:45 Dealing with Serious Juvenile Offenders in the Juvenile Justice System

--featuring Riley Shaw of the Tarrant County District Attorney’s Office and Kameron Johnson of the Travis County Juvenile Public Defender’s Office

12:00:1:00 Lunch in the Sheffield Room - Keynote speaker: TBA

1:15-2:30 National Juvenile Justice Reform Initiatives

--featuring Michele Deitch of the University of Texas School of Law and LBJ School of Public Affairs, Jody Kent of the National Campaign for the Fair Sentencing of Youth, and Cynthia Totten of Just Detention International

5:30-7:30 Happy Hour at 219 West, located at 219 West 4th St., Austin, TX 78701

Webb County Sheriff's speculative jail scheme ignores risks

The Laredo Sun, in an article that reads mysteriously like a badly written press release, reports that the Webb County Sheriff is pushing county commissioners to build a speculative new jail in hopes of turning a profit by housing federal immigration prisoners:
If the county government built a new prison, the project would practically get paid on its own because the current jail could generate several million dollars if federal prisoners are housed in it.

"This building is just right for federal prisoners because the federal court is very close and U.S. Marshals would like to spend less on the transportation of prisoners and have more security," Sheriff Martin Cuellar informed.

He also mentioned that the federal government currently pays almost $50 per day for each federal prisoner, but there is no room in the county jail for these prisoners.

"'These are prisoners that generate revenue but we can not have many of them because we need the space for local and state prisoners, the jail easily reaches its capacity of 572 beds," he indicated.

Cuellar stressed that this new prison project should have been worked on, therefore he has requested the support from the Commissioners Court to find a suitable site.

Cuellar also plans to make improvements in the prison control center in order to offer greater security for employees and prisoners.

The next day, County Commissioners approved the Sheriff's request to seek donated property for the project and established a committee to study a new jail.

It would be a mistake, though, for Webb County to overbuild beyond its own needs or seek to turn a profit competing with private prison vendors. That can too easily backfire, just like it did in Cameron County, which overbuilt its jail, took on large federal detention contracts, and now gets paid $36.35 per day to house federal inmates and must pay $48 per day to house their own, local pretrial detainees three hours away in another county.

As it turns out, Webb County has problems staffing its jail at current inmate levels because the commissioners court hasn't hired enough guards. But a bigger jail with more jailers will cost less?

The Sheriff is selling Webb County commissioners a pig in a poke: There's no such thing as a free lunch or a free jail.

Execution looms with DNA evidence untested: Will SCOTUS, Governor intervene on Hank Skinner?

Today is the deadline. One of three things will happen today in the Hank Skinner case: He will be executed later tonight, the US Supreme Court will stay his case and order DNA testing on potentially exculpatory evidence, or Governor Rick Perry will commute the sentence for 30 days to allow the evidence to be tested. Which will it be? Your guess is as good as mine, so please record yours in the comments.

For my part, I think Sam Millsap is right: DNA testing only works if the justice system chooses to use it. After the Governor signed Timothy Cole's posthumous pardon last week, after all the DNA exonerations in Dallas and around the state, much less after witnessing the imbroglio over post-execution innocence claims in the Todd Willingham case, I think it's high time Texas stopped fooling around with these cases (as though they were engaged in a juvenile game of political chicken with the capital defense bar) and start to make sure, at least, that the state is killing the right guy before putting him down.

In addition, I'd like to see Texas clean up its own mess, which in this case would mean Governor Perry temporarily commuting the sentence long enough for the evidence to be tested. Do I think that's likely after the Board of Pardons and Paroles recommended against it? Not really. It would be a surprise, albeit a welcome one, if the Governor did so.

MORE: Excellent post from Mark Bennett at Defending People: "Nope, No Balm in Gilead. Sorry."

UPDATE: SCOTUS stayed the execution, for now. What's next? According to Lyle Denniston at SCOTUSBlog:
Lawyers on both sides have completed all of the filings in the case on that issue, so the Court is expected to schedule it for Conference within a matter of weeks. In the meantime, the postponement granted Wednesday will stay in effect until the petition is acted upon and, if granted, until it is decided. If review is denied, the postponement will expire automatically and the state could then schedule execution anew. If review is granted, a ruling would not be expected until next Term, starting next October.

Tuesday, March 23, 2010

UTMB-linked consultant advising California on prison healthcare

Here's a development that may interest our pals at the blog California Corrections Crisis: George Reamy, who is a UTMB-based candidate for the Texas Faculty Association executive board, has several recent posts up about a Texas telemedicine company linked to UTMB that is now advising California on its troubled prison system.
Former UTMB President John Stobo is now senior vice president for health sciences and services for the University of California system, reports Reamy. Perhaps relatedly, California hired as consultants to help fix their court-driven healthcare problems a company called Nuphysicia, which is a partnership between UTMB, a private equity firm, and several UTMB physicians.

Reamy points out that when Dallas County contracted with UTMB under Stobo to provide medical services at the jail, it led to a series of successful lawsuits that ultimately cost them the contract. It's also interesting to me that Nuphysicia was hired as a cost-cutting consultant; when they were launched, the project was pitched as being a telemedicine service provider.

Comments due soon on Driver Responsibility rules

Decision time is drawing close. There's an item on the Public Safety Commission's just-released March 31 agenda (pdf) to set a public hearing for proposed revisions to the Driver Responsibility rules.

For those who'd like to share their views with the PSC on the rules, the public comment period for the proposed rules ends April 4, but that's a Sunday so presumably that will be extended to April 5. "Comments on the proposal may be submitted to Rebekah Hibbs, Driver License Division, Texas Department of Public Safety, P.O. Box 4087 (MSC 0300), Austin, Texas 78773; by fax to (512) 424-5233; or by email to DLDRuleComments@txdps.state.tx.us."

In the big picture I believe this program should be abolished, but the Public Safety Commission can't do that. They do, however, have authority to go much further than DPS staff did in the proposed rules published in the Register. I've been working with Amanda Marzullo at the Texas Fair Defense Project to suggest amendments to the proposed rules that are within the agency's power, and here are the main things we think folks should be asking for:
  • Create an Amnesty program to clear up noncompliance backlog
  • Use accurate documentation for the application process
  • Make language comply with 2011 statute waiving surcharges for indigents
  • Create incentives to encourage compliance for other low-income drivers
Last summer DPS proposed an aggressive Amnesty program for the 1.2 million drivers who've lost their license because of the surcharge, letting them pay a smaller amount to regain their license and get back into compliance. That's been dropped from the current proposal but it's arguably the most important part because a) it helps resolve the backlog of noncompliant drivers and b) would actually generate revenue from people who aren't paying.

With 1.2 million drivers noncompliant, if 1/3 of them took advantage of an amnesty program and paid an average of $250 each to get their driver's license back, that would generate $100 million in additional revenue (400,000 x $250) from drivers who otherwise weren't likely to pay. Why leave that money on the table?

As for using accurate documentation, the proposed rules suggest using income tax returns to determine indigency, but that can reflect outdated information. For example, since I lost my job last year as a result of the economic crash, looking at last year's tax return would tell you little about my current income. We'll be proposing standards drawn from other programs to reflect current income.

On the indigency program itself, oddly DPS chose not to waive surcharges for indigents, which will be required by state law beginning in 2011, instead merely reducing surcharges for drivers with incomes below 125% of federal poverty levels (FPL). That seems like a strange decision - to change the rules knowing they must be changed again in a year's time. There's a strong argument to be made for doing the job once and getting it right the first time.

Finally, 125% of poverty is pretty low (around $10,000 for an individual) and there are many low-income individuals above that threshold who still have trouble paying those fees. For these individuals, the Legislature authorized the PSC to create an "incentive" program to encourage compliance, and we think the PSC should create such incentives for individuals between 125-300% of FPL.

I'm glad the Public Safety Commission is finally taking up this issue, but the proposed rules don't go nearly far enough. The PSC should exercise authority granted it by the Lege in 2007 to more decisively fix this broken program.

See recent press coverage:

Concerns about 'spillover' from Mexican drug fighting belated, naive

It's becoming hard to know what to think about news out of Mexico about crime and the drug war. What few reports we get from northern Mexico sound goddawful, and we know we're not getting the whole story, by a longshot. But friends who've traveled recently in Mexico reported few concerns for safety, and thousands of spring breakers just returned without incident. Meanwhile murder rates in southern Mexico are lower than they've been in years after long-stewing land disputes were essentially resolved by force in favor of large landowners.

That said, recent news has been filled with reports of drug violence in the north and in Acapulco, events which have Governor Perry and others talking about "spillover." But that's a misnomer, one which Jerry Brewer at Mexidata.info corrects:
The simple fact is that DTOs [Drug Trafficking Organizations] have been on U.S. soil for quite some time. They have established highly sophisticated smuggling infrastructures within the country. And for distribution they utilize, among others, U.S. street gangs, prison gangs, and outlaw motorcycle gangs. Much of this assimilation by Latin American gangs has been from within U.S. prison walls.
Bingo. People don't get it. The Mexican Ambassador was dead right when he told the Houston Chronicle that Texas officials' statements about spillover are “disingenuous or naive.”

“The term ‘spillover' would, at least in my eyes, seem to be a bit of a false dilemma,” [Ambassador Arturo] Sarukhan responded. “You speak of ‘spillover' as if you had the pristine waters of Alaska contaminated by the spill of the Exxon Valdez. That is, there was nothing there before the Exxon Valdez created the accident.

“To assume that in Texas there are no distribution networks, drug traffickers don't have safe houses, they don't have banks, they don't launder money, is disingenuous or naive at the least,” he told reporters and editors from the Houston Chronicle and San Antonio Express-News. “So ‘spillover'? They're already there.”

This idea that the border is some defensible wall, or ever could be, is a farcical myth. That's never been true and in the era of globalism, cannot be. There's too much cross-border trade and traffic, too many entangling business and family relationships. When DTO fighting begins to "spillover" into the United States, it probably won't be along the border but in Houston, Dallas, New Orleans, Phoenix, Atlanta, Chicago, Los Angeles - all the big-city transportation hubs where these organizations have deep, longstanding networks. And once they're underway, those wars will largely be fought by proxy; their local face will largely be that of homegrown gangs and crooks, not necessarily Spanish speaking Mexican capos. We will have finally met the enemy and it will be us.

With that in mind, any possible solution must recognize and embrace that interconnectedness instead of pretending we could ever become "Fortress America" and simply wall the border off. Anyone who has spent much time in border towns (before the last few years, anyway) knows that day-to-day life there is more tightly bound with folks across the river than outsiders know. Post-NAFTA, the rise of the maquiladora industry added a layer of daily business interconnectedness that includes many of America's largest companies.

The Fortress America crowd would demand that border communities sacrifice those relationships in the name of security, but the better approach is to leverage them. We've only seen hints of that possibility along the Texas border, where instead our leaders' focus has been on pork barrel politics and installing web cams so citizen volunteers could monitor stretches of wilderness for immigrants in their spare time. However, Andrew Selee, director of the Mexico Institute at the Woodrow Wilson International Center for Scholars in Washington, D.C., told the Dallas News' Alfredo Corchado that there may be another model to consider out of California in San Diego/Tijuana, where he said:
It was startling to see some of the cross-border cooperation going in between agencies in Tijuana and San Diego. Not just federal government agencies, but also city and county police departments, nongovernmental organizations, and business networks. It gave us hope. In Tijuana, they seem to have limited the role of the military to pursuing high-value targets and worked on strengthening courts and police to make it harder for criminal organizations to operate. I'm not sure that's the magic bullet, but it seemed like there were lessons there that might work well elsewhere along the border, especially in Juárez and some of the other cities along the Texas border.
There are challenges to doing that in Juarez, where, for example, there's a good chance relying on local police would mean handing enforcement over to the control of a DTO that for many years had thoroughly corrupted them. (Officials say they've fired the corrupt officers - which was a large proportion of the force, but quien sabe?) Of course, that's sometimes also been true on the US side. Still, perhaps border cities and state officials on both sides of the river should look to the San Diego-Tijuana example for a more integrated approach, one that builds up local institutions instead of supersedes them?

Monday, March 22, 2010

Border pols to Governor: Tone down rhetoric, keep us in loop

Brandi Grissom and Juan Aguilar at the Texas Tribune report that:
Leaders from one end of the Texas-Mexico border to the other said Friday they want Gov. Rick Perry to tone down the scary rhetoric and to get real about solving problems in their hometowns. And, by the way, they would also like to be consulted about security plans that affect the communities where they live.
All I can say is, "It's about time." The Governor has been hyping "scary rhetoric" on the border for years - in 2006 it was his principal campaign theme. Parallel to this political positioning has been a series of bad security choices, from massive grants frittered away on patrol overtime to spending millions on the TDEX database and financing do-nothing "fusion centers." In all, the state wasted upwards of nine figures on the Governor's politically aimed border security programs - an investment for which the state has very little to show.

This was not done for the benefit of folks on the border, but to scare white voters elsewhere in the state with nativist rhetoric and symbolism, playing on culture-war themes as pretense for security and immigration policy. It also bought the Governor law enforcement allies from the border (Sheriffs receiving the grants) who were willing to say nice things about him in the media. But most folks from the region didn't benefit - especially in the urban areas where most people live.

Not only was Governor Perry's border-security money basically shoveled down a hole, the wasted dollars and years represent an even more significant opportunity cost, fiddling away time and resources on pork-barrel politics while a crisis mounted in Juarez, Nuevo Laredo, and Reynosa (sister cities across the river from El Paso, Laredo and McAllen). Given that record, the Governor must hope that voters confuse activity with achievement. To be fair, though: They probably will.

Communing with the angels in the Dallas jail

If you need evidence that the legal system doesn't really know how to accommodate voice hearing defendants, look no further than delays in a routine misdemeanor case that have stranded a mentally ill inmate for months in the Dallas County Jail on minor charges, as reported in the Dallas News ("For mentally ill man, 45 days stretches into 6 months," March 20):

Nicholas Sauve says he talks to angels in his Dallas County Jail cell.

The severely schizophrenic man has had months alone to do so. Arrested for shoving his mother against a car, he was sentenced in September to 45 days in jail.

Six months have passed. He is still in a cell in the West Tower Jail. During a jailhouse interview last week, he drummed his long, dirty fingernails against his nose and cheek and questioned why he couldn't go home.

"Why am I still here?" he asked, his eyes flitting from left to right. "They're all criminals for keeping me here. It's on their flesh and spirit. I'm a holy angel. I don't sin."

The legal filings in Sauve's case show he hasn't been lost in the criminal justice system since his arrest June 12. But the delays in his case are readily apparent. ...

"I knew him when he could write poems, paint, sculpt. And now sometimes he doesn't recognize me," said Billy Elrod of Irving, a friend who has visited him in jail. "When he doesn't get his medicine, it hurts him. Every time he goes, the person we get back is only a part of who he was before. If we don't get him back soon, we'll never have him again."

This case dragged out, in particular, because TDCJ refused admission to court-ordered drug treatment (SAFP) based on the probationer's psychotic state - the program simply has very few beds designed to handle offenders with serious mental health needs. So that particular sentencing decision was probably a misjudgment to begin with, particularly as a probation condition on a minor assault. But the situation points to the larger truth that we have no good answers for such defendants except forced medication, and that only lasts as long as taxpayers foot the bill to keep the fellow locked up.

Large numbers of people wrapped up in the justice system - about 3 in 10 Texas inmates - were clients of the state's indigent mental health system before incarceration. While most cases don't drag out as long as this one, Sauve's case emblemizes the problem of mentally ill offenders arrested for minor offenses who soak up large amounts of criminal justice resources over what's essentially a medical problem, except their medical care is primarily delivered as part of a punitive system.

Sunday, March 21, 2010

Bill author says "overly punitive" Driver Responsibility surcharge a "mistake"

Houston Chronicle coverage of proposed changes to the so-called Driver Responsibility surcharge rules included a couple of notable quotes ("Critics: Law puts drivers on road to ruin," March 21):

Mothers Against Drunk Driving supports the law but did not lobby against last year's attempts to repeal the program, said Bill Lewis, public policy liaison for MADD's Texas office.

“We can't point to anything that says that law has caused a decline in alcohol-related fatalities,” Lewis said. “We're not going to go nuts if the Legislature decides they want to repeal it.”

What's more:

Former state Rep. Mike Krusee, R-Round Rock, who authored the omnibus transportation law that led to the program's approval, concedes that allowing the surcharges was a bad move.

“My feeling right now is we definitely made a mistake — that it's overly punitive,” Krusee said. “I think it's past time to either revise or repeal the program. It is inequitable in its enforcement because it doesn't take into account to a just degree people's incomes and their ability to pay, because the fines, I mean, they're huge.”

Hearing voices: Listening to voice hearers outside the justice system

I read a book last weekend on the subject of hearing voices, titled "Muses, Madmen, and Prophets: Rethinking the History, Science and Meaning of Auditory Hallucination," by Daniel Smith. Anybody who pays much attention to the justice system sees stories all the time, sometimes tragic, of people hearing voices, and this book offered a fresh, sympathetic perspective.

The author had a personal motive for exploring the topic: His father and grandfather heard voices, though he and his siblings do not. For his father in particular, a successful Long Island attorney, it was a source of personal humiliation that he rarely discussed. While most people, myself included, associate voice hearing with schizophrenia, Smith says it can result from a number of different diagnoses and isn't well understood at all, in part because of "pathologizing" the phenomenon beginning in the 19th century.

In other words, people think you're crazy, so people who hear voices tend to keep it to themselves. Most of these folks commit no crimes, ever, and don't get wrapped up in the justice system. In Europe, a network of voice-hearers has sprung up to help folks accept voices and learn to cope, he reports, whereas most modern psychiatrists would prefer to medicate them away.

In centuries past, however, the phenomenon was more commonly recorded, says Smith, all the way back to (and especially including) the ancient Greeks. Indeed, my favorite part of the book was Smith's argument that Socrates' trial was primarily focused on his reliance on a "personal deity," or a voice that ancient authors recorded spoke to the great teacher that other couldn't hear. Another chapter investigated Joan of Arc's voice hearing and visions, which of course instructed her to engage directly in armed conflict.

Despite the wonders of modern science, the brain remains a poorly understood thing, but increasingly it's clear that much of its activity is self-referential. We think of "sight," for example, as gathering information from the outside world through visual cortex, but most of the information making up those images comes from our memory. Similarly, voice hearing can range from something audible like a voice from a tangible person elsewhere in the room, to a silent compulsion, like words repeated in your head when you're memorizing a poem. Smith analogized the sensation to a phantom limb a patient still feels after amputation: Voices seem real to voice hearers, even when they know they're not.

Many voice hearers obey their voices' commands when they don't think it's harmful, Smith reports. His grandfather tried to use them to bet horses. Others with an obsessive compulsive bent may be told to straighten place settings at dinner or clean their house. Apparently this is not uncommon and presumably is only a problem when the voices start saying things like "Attack that young mother" or "Kill your children." Smith emphasized that most people who experience voice hearing, however, don't remotely ever get to that point and all this give and take with silent conversants for the most part goes on in secret.

For much of human history, such internal conversations were likely to be seen through a spiritual lens - most often as prayer or, negatively, as witchcraft - and the experience was as frequently valued as denigrated. A recurring aspect of voice hearing, says Smith, both historically and in the present day, involves religious themes and even direct communication with "God," as typified by examples from the Dallas County Jail to Socrates, and on to Abraham, Joan of Arc, and Andrea Yates.

Perhaps relatedly, Smith described examples of voice hearing, divine and otherwise, where the person involved drew comfort from the experience and didn't want it medicated away. Often people hide what is happening because they know modern medicine would view it as a disease and try to strip away an experience that carries significant meaning for them.

That aspect fascinated me because the justice system basically views "success" in this arena as keeping folks "on their meds." But Smith's book observes that most voice hearers, for most of human history, found ways to cope without the use of antipsychotic drugs. After all, Abraham listened to and obeyed what he presumed to be the voice of God, but withdrew his knife before plunging it into Isaac. While a handful of spectacular incidents dominate these conversations, mentally ill people overall are statistically no more likely to commit crimes than the "sane."

If I had one critique, it's that I'd like to have heard more from Smith about how the justice system treats voice hearing - beyond what a German court ruled in a famous case in the 1890s. And a discussion of voice hearing and post-partum psychosis - evidenced by Andrea Yates drowning her children in its most extreme form, but more common than most people know - would have been a welcome addition to the collection of examples he provided.

OTOH, in a way staying away from those hot-button examples to look at the phenomenon more sympathetically perhaps allowed him to articulate his views free from justice-system dogma, which thinks poorly of voice hearing, as a rule. Generally, the justice system believes it's succeeded only when the voices are extinguished. There are instances, though, where "success" might be reasonably redefined as preventing a worst case scenario.

Smith's book makes me think it's possible that pathologizing mental illness contributes to our continued flailing on "what to do" with these individuals: To institutionalize? To manage, medicated, in the community? If so, with what enforcement? Maybe these are false choices? Perhaps there's merit to building on the successful experience of those, like Smith's father and grandfather, who cope successfully with voice hearing, teaching the skills they use rather than instantly, exclusively relying on drugs? That might mean not always stigmatizing the experience as pathological or criminal, but let's face it: By all appearances, just drugging the symptoms away isn't working that great, anyway.

If Smith is right, it has implications for how voice hearing is treated in the justice system, perhaps complementing research that indicates mental illness is not a primary criminogenic factor. That implies that mental health professionals in the justice system should rethink their goals with an eye toward long-term stability, reinforcing family support, rapid crisis response, and an understanding that the "crisis" might end, but voice hearing may not.

Saturday, March 20, 2010

How effective are juvenile drug courts?

Having recently mentioned a report from the federal Government Accountability Office that called into question whether there's evidence-based support for juvenile drug courts, my interest was piqued when a commenter pointed out the subject is addressed more favorably in Marc Levin's recent report on cost saving juvenile justice programs from the Texas Public Policy Foundation. Marc tends to think juvenile drug courts are demonstrating promising results. Here's an excerpt from the portion of the report on the subject:
Juvenile Drug Courts
Some 78.4 percent of youths in the justice system are connected to substance abuse, either because of testing positive for drugs, admitting to use, being under the influence at the time of the offense, or committing an offense involving alcohol or drugs. Upon arrest, 54 percent of youths test positive for drugs. Fortunately, addiction can often be treated successfully, as studies have found a 50 percent reduction in drug use after one year of treatment and a 64 percent reduction in arrests.

Drug courts have proven to be one of the most effective ways of diverting drug off enders into treatment. First developed in Miami in 1989, a drug court is a special court assigned to dispose of cases involving substance-abusing offenders through comprehensive supervision, drug testing, treatment services, and immediate sanctions and incentives. Drug courts feature extensive interaction between the judge and the offender and often involve the offender’s family and community. Unlike the typical judge who issues a sentence and moves on to the next case, drug court judges regularly hold hearings to follow up with the offender and monitor compliance. Successful completion of the drug court results in dismissal of the charges (pretrial diversion) or satisfaction or reduction of the sentence (reentry or intensive probation). Drug courts vary in structure, as they may target different populations at different stages in the juvenile justice process and consist of different phases.

There are 14 juvenile drug courts in Texas. One of them, the Travis County Drug Court, was founded in May 2001 to serve post-adjudicated substance-abusing youths between 13 and 17 years old. Eligible youths include not only drug offenders, but also other types of offenders whose drug use significantly contributed to their delinquent conduct. Since 2001, there have been 362 participants. The most common drug used upon entry into the juvenile system is marijuana, with 51.3 percent of youths reporting use, followed by alcohol at 11.3 percent, benzodiazepines at 3.2 percent, cocaine/crack at 1.6 percent, and other drugs at 1.6 percent.
He examines a number of local programs, citing Travis County as having good outcomes:
The evidence indicates that the Travis County Drug Court has been highly eff ective. An increasing number of participants have not re-off ended within a year, with 84 percent not recidivating in 2008. Additionally, 78.7 percent of participants have refrained from alcohol or drug use within six months of completing the program. These outcomes are particularly impressive given the challenging composition of the population. Discharged juveniles averaged 6.8 referrals, and 43 percent had mental health problems.
In Tarrant County, says Levin, "Since 2006, recidivism rates upon two years following graduation are less than 10 percent."

By contrast, the GAO found that "Most experts indicated that there was limited evidence on the effectiveness and cost benefits of ... substance abuse programs, such as drug courts—specialized courts that provide programs for substance-abusing juveniles and their families." Here's more detail from that report:
Of the 13 substance abuse experts we interviewed, 10 had specific experience or knowledge related to drug courts that resulted in mixed views of the effectiveness of this program type.1 Juvenile drug courts are specialized courts established within and supervised by juvenile courts to provide intervention programs, such as cognitive behavioral therapy or family therapy, for substance-abusing juveniles and their families. Juvenile offenders assigned to drug courts are identified by a juvenile court as having problems with alcohol or drugs. The drug court judge maintains close oversight of each case through frequent—often weekly—status hearings with the individuals involved. The judge both leads and works as a member of a team that can comprise representatives from juvenile justice, social services, school and vocational training programs, law enforcement, probation, the prosecution, and the defense. Together, the team determines how best to address the substance abuse and related problems of the juvenile and his or her family.

Specifically, of these 10 experts, 5 experts described drug courts as having insufficient evidence to determine program effectiveness. For example, 2 experts mentioned that while some studies show drug courts reducing substance abuse while juveniles were under court supervision, the results did not last after juveniles were no longer being supervised by the courts. Another expert stated that since drug courts tend to be used for juveniles who have their first or second contact with the juvenile justice system, they are ineffective at achieving desired results because they expose these first-time offenders to peers who have more serious substance abuse addictions and therefore might influence them to continue to abuse substances. By contrast, the remaining 4 experts stated that drug courts can be effective at achieving desired results such as reducing substance abuse if, for example, the juvenile is sent to a community where there are intervention programs offered that have been evaluated and have been shown to be effective, such as cognitive behavioral therapy or family therapy intervention programs. One expert cited a study to support the opinion that drug courts supplemented with multisystemic therapy resulted in a decrease in substance abuse by juvenile offenders.
Obviously, with 14 active juvenile drug courts the state has an interest in whether or not they work to reduce crime. Marc's research provides a flip side to the GAO's recent guidance on the topic, but I wonder why the results he reported seem more positive than those the GAO experts cited?

Friday, March 19, 2010

'Getting More for Less in Juvenile Justice'

Marc Levin of the Texas Public Policy Foundation just published a new 44-page public policy report (complete with 232 footnotes) with the pithy title "Getting More for Less in Juvenile Justice: Innovative and Cost-Effective Approaches to Reduce Crime, Restore Victims and Preserve Families" (pdf). I've not read it yet, but here's a taste from the Introduction: "Saving a youth from becoming a chronic offender results in $1.7 million to $2.3 million in avoided lifetime costs to taxpayers and victims. Consequently, all Texans have a large stake in cost-effective approaches to juvenile justice that result in more youths turning away from crime and towards a future as a productive citizen in which they are an asset, rather than a liability, to their fellow citizens."

US House should eliminate crack/powder disparities for cocaine sentencing

It's been a while since I've written to my Congressman under my own steam, as opposed to in response to some organization's action alert showing up in my email box, but the chance to reduce or eliminate the federal crack-powder cocaine sentencing disparity (discussed by Doug Berman at Sentencing Law & Policy here, here, and here) inspired me to send this brief message over Rep. Lloyd Doggett's constituent contact form:
Please work as hard as you can to pass the legislation just over from the Senate to reduce the crack-powder sentencing disparities over what amount triggers mandatory sentence enhancements. S. 1789 would change the disparity from 100-1 to 18-1, which is better but still unjustifiable. I'm hoping to see/hear my Congressman pushing strongly to reduce that ratio to 1-1 in the House.

On this issue, my own views are being represented most closely by the group FAMM, or Families Against Mandatory Minimums, and I'd encourage you to work with them and support their efforts on this legislation.

For more background, see http://sentencing.typepad.com/sentencing_law_and_policy/2010/03/full-senate-passes-bill-to-reduce-but-not-eliminate-crackpowder-disparity.html
Feel free to copy, modify and send your own version to your own representative, if the inspiration strikes you. You never know: Maybe for once Congress won't screw the pooch as badly as they have on healthcare. This is long overdue.

MORE: From Drug War Chronicle.

Casting light on Texas clemency decisions

I've not followed the Hank Skinner case on Grits; the blow-by-blow has been covered well elsewhere and I've had nothing in particular to add to the conversation. (Sam Millsap's recent column in the Houston Chronicle largely reflects my views.) Certainly I think any potentially exonerating forensic tests should be performed before his execution date, currently scheduled for March 24; you don't want such inconvenient truths coming out after the fact.

But as the clock ticks and the lawyers wait on the U.S. Supreme Court to decide whether DNA evidence must be tested, Skinner's case is casting light on some particularly dark corners of the justice system, most recently the clemency process, which has essentially withered and atrophied from disuse. In an article at the Texas Tribune titled "The Secret Pardon," Brandi Grissom gives voice to critiques of enigmatic and abstruse clemency practices at the Texas Board of Pardons and Parole:
The seven-member board makes life-or-death decisions, recommending to the governor whether an execution should be delayed, called off or carried out. Yet it’s one of the least transparent agencies in state government, making it all but impossible for [Skinner's attorney Rob] Owen, or any other member of the public, to decipher how or why it makes decisions. The board doesn't have to hold public meetings on clemency cases like [Hank] Skinner's. It's not required to give any reasons for its recommendations. Most times, the seven members simply fax in their votes. If the vote isn't unanimous, clemency is denied. What’s more, there are no guidelines in statute or in the board’s rules that outline a basis for decision-making. And nearly all the documents the board uses to make its decisions are kept secret under state law — even after an inmate is executed. “To the extent we assume that the clemency review process is a meaningful safeguard for cases like Hank’s, where there might be doubt about guilt … our trust is misplaced,” says Owen, co-director of the University of Texas at Austin School of Law's Capital Punishment Clinic.

Criminal justice advocates and some lawmakers have called for reform of the Texas clemency process for years, calling the current system opaque and arbitrary. Especially in the wake of high-profile cases like that of Cameron Todd Willingham, who was executed in 2004 despite serious concern about his guilt in an arson that killed his daughters; and of Tim Cole, who was exonerated of a rape conviction after he died of an asthma attack in prison, proponents of reform say the time for change is now — before Texas puts an innocent person to death. Even Gov. Rick Perry has supported past efforts to require the board to meet in public in capital clemency cases. Rissie Owens, chairwoman of the Board of Pardons and Paroles, and a member of the Huntsville school board, declined an interview for this story and did not answer written questions about calls for reform. She sent an e-mailed response outlining the board's current rules.

According to a 2005 report (pdf) by Texas Appleseed and the Innocence Network, says Grissom:

Texas is the only death penalty state that does not require the board to meet for clemency decisions, according to the report. Instead, the board’s practice is to send materials to board members across the state who make full-time salaries ranging from about $95,000 to $115,000 for chairwoman Owens. They review the information and then fax in their votes, a process the Fifth Circuit Court of Appeals upheld in 1999 in a lawsuit in which a death-row inmate unsuccessfully sued the state, claiming the clemency process was unconstitutional.

Of course, given the fact that Rick Perry has rejected clemency in most cases recommended by the Board of Pardons and Paroles, whatever criticisms one may have of their policies, they're being a lot more generous than he is!

Related Grits posts:

Are TDCJ staffing gains partly illusion?

While TDCJ reports that the number of vacant correctional officer slots in Texas prisons is down to just over 500, from a crisis-level high of around 4,000 not long ago, The Back Gate website says that's partly an illusion:
In a report obtained from the Texas Board of Criminal Justice ... TDCJ leaders claim the agencies [staffing] situation is now brighter. Brad Livingston, TDCJ's executive director, stated that just a year ago the agency had nearly 4,000 vacant Correctional Officer positions open. Now he states there are only 512 open. The reasoning behind the jump in applicants was blamed on the current slump in the economy and the accompanying layoffs in many other fields.

This situation has prompted agency leaders to institute new hiring standards for incoming correctional staff that will center around physical fitness. Soon applicants must be able to run a specified distance within a time limit, and complete other physical fitness standards before even being offered employment. Those employees then must re-qualify on a yearly basis to retain that employment.

Although Correctional Officer numbers are looking good on paper, many TDCJ facilities statewide are still mandating staff to work overtime, canceling days off, and even cutting back on some internal facility movement due to the lack of staffing. The TDCJ staffing plan that was unveiled statewide almost a year ago took Correctional Officer slots off of unit rosters in most cases. It made it appear that there were enough staff on duty, when in fact it actually meant changing the required numbers to reflect that less were needed to do the same work done previously. A smoke and mirrors act if you will that has not only made it harder to run those facilities, but also created a dangerous situation for staff members who must bear the burden of those vacant positions.
It'd be interesting to examine side-by-side staffing ratios under both the old staffing plan and the new one at each unit to see the extent to which improved staffing really results from artificially reducing denominators.

Another, related post (Back Gate posts regrettably don't have permalinks) informs us that:
The numbers for 2009 representing hiring and separation of TDCJ employees has been recently released to the Backgate Website. TDCJ’s Region III lead the state in Officer turnover for 2009. Region III hired 1,263 for the year, but lost 1,091. That total amounted to only retaining a mere 172 hired employees for the year. Region I, who lead the state in hiring employees in 2009 with 2,327, lost 1,502 retaining 825 Officers for the year. The average time employed by a leaving Correctional Officer for Region I was 3.4 years. The average experience level of employee lost from Region III was 4.1 years on average.

TDCJ hired a total of 8,375 Correctional staff members in 2009, but lost a total of 5,780. That means they ended up with only 2,592 positions filled out of hiring 8,375 people.

Thursday, March 18, 2010

Is drug treatment working for incarcerated juveniles?

A couple of months back I puzzled at the fact that, according to the evidence, the Texas Youth Commission's substance abuse treatment programs actually increase recidivism among participants compared to control groups that didn't go through the program. What I didn't know is that apparently that's not an atypical outcome. According to a Government Accountability Office report issued in December 2009 titled "DOJ Is Enhancing Information on Effective Programs, but Could Better Assess the Utility of This Information":
Most experts indicated that there was limited evidence on the effectiveness and cost benefits of reentry programs, such as aftercare—programs that assist juvenile offenders in returning to their communities during the reentry process—and substance abuse programs, such as drug courts—specialized courts that provide programs for substance-abusing juveniles and their families.
This GAO report was prepared to give more specific guidance to juvenile justice practitioners about "practices that have been evaluated and have been shown to be effective," but focusing on addiction for juveniles, according to GAO, doesn't work any better nationally than does substance abuse treatment at TYC. By contrast:
The majority of the juvenile justice reentry and substance abuse experts GAO interviewed cited evidence that shows cognitive behavioral therapy—programs that help individuals change their beliefs in order to change their behavior—and family therapy—programs that treat juveniles by focusing on improving communication with family members—are effective and cost beneficial when addressing reentry and substance abuse issues.
So TYC's substance abuse treatment historically produced worse results, and the feds say it's not been proven effective for juveniles compared to family and cognitive-behavioral therapy. I'm generally a supporter of evidence-based treatment, but at this point, can we say that drug treatment for incarcerated juveniles is "evidence based"? The evidence seems to say it's not working. Maybe I'm missing something.

Given those outcomes and the status of current research, TYC and perhaps local probation departments should take a hard look at their outcomes and evaluate whether a drug treatment emphasis makes as much sense for juveniles as for the adult population. My instincts would be to think that it does, but both Texas data and this national GAO analysis seem to say otherwise.

TYC recently revamped its drug treatment program so it'll be a while before we see recidivism outcomes from the new regime. These trends make me think the data will be worth parsing closely when they finally become available.

Dallas DA reviewing cases from 'quarterback' of Garland drug cops

Tanya Eiserer at the Dallas News has the story of court testimony by fellow officers that an 18-year veteran narcotics detective, described as the "quarterback" of Garland PD's drug unit, allegedly lied to support an informant's story and implicate a defenant ("Garland drug officer's cases re-examined after credibility questioned," March 18):
An undercover informant opened the motel room door, letting four police officers rush in for the drug bust. They quickly arrested a man who had already spent 10 years in prison for dealing dope and burglary.

It was just one of many scores for star Garland narcotics detective Dennis Morrow. But what followed the July raid was unusual: Two of the officers told their boss that Morrow's written report about the raid misrepresented what happened – and last week, in court testimony, they swore that the inaccuracies were part of a pattern.

Defense attorney Bill Wirskye reviewed documents with Garland narcotics detective Dennis Morrow in a pretrial hearing in Dallas on Friday. Morrow has defended his police reports, and an internal affairs investigation last fall cleared him.

Now Dallas County prosecutors say they'll scrub all of Morrow's drug cases, just as they did after the 2001 scandal in which paid Dallas police informants planted fake narcotics on innocent people. Morrow has been a key witness in hundreds of felony drug cases.

"It is extremely rare for police officers to admit they have concerns about a fellow officer, so when these two Garland officers said they had credibility issues with Officer Morrow, quite naturally it gave the district attorney's office reason to be concerned as well," said Jamille Bradfield, spokeswoman for the Dallas County District Attorney's Office.

"We will review all of the cases filed with our office during the time Officer Morrow was assigned to narcotics where he was the arresting officer and take the appropriate action if necessary," she said.

Morrow could not be reached for comment. In court testimony Friday and during a Garland internal affairs investigation, he denied fabricating evidence. ...

The Garland internal affairs investigation cleared Morrow last fall, although Garland police also chose not to ask the district attorney's office to press charges against Tramane Hooks, now 29, who was arrested on a drug delivery charge. He was freed.

Police commanders also transferred Morrow and almost everyone else in the narcotics unit, including the whistleblowers. Garland police declined to comment.
See the rest of her excellent story for more details. The DA's office has quite a task in front of them, and not just in the 5-10 cases Officer Wise said had accuracy issues: "Since 2005, at least 287 felony drug cases where Morrow made an arrest have passed through the court system. More than 80 of his cases are pending," reports Eiserer. It sounds like this could easily mushroom into another Tulia or Sheetrock-level scandal, depending on what that review finds. At a minimum, it may be impossible to prosecute many of those pending cases.

Bully for the two cops who blew the whistle and to Eiserer for hound dogging the story, during which she was introduced to the ins and outs of requesting internal affairs records in a civil service city.

MORE: From Drug War Rant, where Pete adds, "When good cops come forward, they’re not betraying a confidence, they’re being loyal to the police force, to the people they serve, and to the integrity of the rule of law. That is far more heroic than breaking down a door and busting a bad guy."

Big D: Shopping Mecca

Reports Scott Goldstein at the Dallas News:

At the Dallas CityStore, customers can find affordable furniture, bikes, electronics and other merchandise from the police property room and other city departments.

But a city employee was recently surprised to stumble upon a different product: 123 bags of illegal drugs mistakenly shipped over in a file cabinet by the Dallas Police Department Property Unit.

"It was a terrible oversight," said Sgt. Warren Mitchell, a department spokesman. "We're going to see where we went wrong and try to fix that problem."

Okay, why don't you do that?

Related:

Panhandle jail overcrowding all about pretrial detention

According to NewChanel 10-Amarillo, the explanation for jail overcrowding in 5 thinly populated Panhandle counties is simple: "The reason why is many people do not have the money to bond out." That is a soluble problem that doesn't require jail building.

Fort Worth justice says traffic stop video too often missing, ignored in DWI cases

Last week I praised the notion of police headset cams and said that dashcams required in Texas' racial profiling law, where they had been installed, were generally well received. In response, commenter "Old Cop" immediately chided my naivete:
It's amazing how many officers modern dash-cams "malfunction" when the facts surrounding the contact are in question and may not be favorable to the agency or the case at hand.

Sad commentary on the level and integrity of many of today's investigations.
Now, over at Liberty and Justice for Y'all we learn that Justice Lee Ann Dauphinot on Fort Worth's 2nd Court of Appeals shares Old Cop's concerns, chastising her colleagues in a recent dissent for a "terribly disturbing" decision by her colleagues to rely "on the officer's testimony to the exclusion of the contradictory evidence of the video record." As it turned out, among other discrepancies, "At trial, Officer Evans described Appellant as unable to stand without swaying or holding on to the wall and unable to properly perform the field sobriety tests. The videotape reveals that Appellant swayed less than the officer and that Appellant performed substantially better than she did on the field sobriety tests." Officer testimony should not be accepted at face value over contradictory video evidence, she opined. The majority disagreed and affirmed the conviction.

As highlighted at LJY, Dauhphinot went on to express what she characterized as commonplace concerns about missing or malfunctioning video. She put it so well, I'll give her the last word:
Repeatedly, we are asked to review records of DWI stops during which there is no audio or video record of the event. Why do I believe there should be audio or audio and video record of the DWI stops? Because the law requires, and did so at the time of this stop, either an audio or audio and video record or the filing of a racial profiling report for each stop. See Tex Code Crim. Proc. art. 2.133-.135. The City of Fort Worth has conscientiously provided the means for complying with this law. ...
An appellate court should give no weight to testimony that is disproved by the objective record of the actual events. And I believe that the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record. ...
At some point, courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for. If the law requires recording to qualify for the exception to filing racial profiling reports, then is the officer not obligated to make sure that there is tape in a traditional video camera or that a digital camera is activated? When the actual recording conflicts with the officer’s testimony, the defendant’s testimony, or another witness’s testimony, a court cannot pretend that the emperor is wearing new clothes just because someone testifies that he is.

Tarrant electronic discovery seen as gold standard

According to the Fort Worth Star-Telegram:
A state panel studying ways to reduce wrongful convictions in Texas seemed to find what it was looking for during a visit to Tarrant County this year.

After reviewing the district attorney's open-file and electronic discovery system, Mary Anne Wiley, deputy general counsel for Gov. Rick Perry, offered one of several superlatives uttered by panel members.

"This sounds like a slam dunk," Wiley said.

Advocates of stronger open-discovery rules hope the Timothy Cole Advisory Panel on Wrongful Convictions will help lead Texas lawmakers to finally push through uniform statewide policies.

Some point to Tarrant County's system as a model for the state.

"Tarrant County does seem to be the gold standard," said Barry Macha, a panel member and Wichita County district attorney. "It's state-of-the-art, the best system I have seen. Personally, I think it's the direction we ought to go."

But the electronic system comes with a price tag, and some prosecutors remain leery of mandated policies, concerned that sharing certain information could put witnesses or victims at risk or give too big of an advantage to guilty defendants at trial.

In many states, prosecutors are required to turn over discovery documents -- such as police reports, witnesses' names and statements -- to defense lawyers long before a case goes to trial.

The rules are designed to ensure that defendants get fair trials and accurate verdicts.

But in Texas, defendants have few discovery rights and are often at the mercy of the policies of the jurisdiction where they were charged. They must file court motions requesting information that may not arrive in time for thorough review.

This approach landed Texas on the list of states "desperately in need of discovery reform," according to the Justice Project, which promotes fairness and accuracy in the criminal justice system.

TDCJ needs 'Plan B' to rescue successful community corrections investments

I attended the first half of the House Corrections Committee hearing Tuesday on probation and community corrections (video available here), one of the interim charges issued to the committee from the Speaker. Only four legislators were there - Chairman Jim McReynolds, Jerry Madden, Marrissa Marquez, and a particularly glum and silent Solomon Ortiz, Jr. (who I commented to a bystander looked like somebody had run over his dog).

Much of what was discussed will be familiar ground to Grits readers, so rather than recite chapter and verse, I'll simply record the impression that - especially among the legislators, in presentations from TDCJ and local adult probation departments (CSCDs) in Dallas, Corpus Christi and Lufkin - the consensus was pretty clear on the need to sustain recent funding for strong probation and diversion programs. (Unfortunately, no one strongly pressed the point with TDCJ director Brad Livingston on why nearly all his suggested budget cuts came from the probation and treatment side.)

Local probation officials were particularly insistent on two critical points: The need for accurate assessment tools, which the Dallas chief emphasized must be used immediately when the offender enters the system (not months down the line), and the need for focusing limited resources on supervising medium and high risk offenders in the first two years of their terms. After that, they all said, intensive supervision usually wasn't worth the bang for the buck, not because the offenders absolutely would not recidivate but because maximizing supervision in that early part of the process generated the best crime-reduction results, with rapidly diminishing returns after the initial supervision period. A large and compelling body of research, the committee was told, supports those conclusions, which were backed up by the individual directors' experiences.

There was no substantive disagreement with those sentiments expressed while I was there, nor in a brief conversation with the three local directors in the lunchroom, which was heartening. While they identified a few glitches - e.g., the Lege may have overinvested in treatment beds and underinvested in (less expensive) outpatient treatment - there seemed little dispute that recent investments are working. However, two things struck me overall.

First, it's clear there needs to be further investment in the 2007 strategies to maximize their potential. That became evident when a critical subtext briefly emerged that will inevitably become a greater source of concern down the line: The reliance of local probation departments on fees for nearly 1/3 of their budgets (ranging from $25-$60 per month, by statute). That creates a long-term unstable situation if probation departments successfully reduce their caseloads, which would the net result of focusing resources earlier and letting offenders earn their way off supervision with good behavior.

One probationer who testified said many offenders considered long probation stints a scam to squeeze fees out of them, and in a sense it's fundamentally true that CSCDs are structurally reliant on that income, giving them an institutional incentive not to reduce caseloads too greatly. To fully implement a strong-probation strategy where offenders are encouraged to earn their way off supervision early through good behavior, those funding mechanisms need to be restructured.

In the big picture of TDCJ's $3 billion per year budget, that shouldn't be an obstacle for reform if prison cutting were on the table (the same could be said, for that matter, of the much-discussed refund shortfall), but if the agency insists that all the cuts have to come from the community corrections side, as was the case in their 5%-cut plan submitted to the Governor, all of a sudden those lost probation fees become a pretty big deal.

Chairman McReynolds said at one point that, although Texas' massive projected $11 billion deficit hadn't yet made its way into budgeting reality, as it inevitably would in 2011, whatever solutions they enacted then they should be thinking about now. With that, I completely agree; I just think the gaping budget hole will be much bleaker and more immediate than the agency is pretending if it's true we'll see an $11-$15 billion gap.

That's why I've been harping on the need to plan now to shift money from prisons to stronger probation. The goal is to save money by changing approaches; budget cuts are only a fortunate byproduct but it doesn't mean they'll stop spending money on corrections. Under that scenario, in adult probation they'd need to spend more. But since 80% of TDCJ's budget goes to prisons, there's also just a lot more room there to cut. Somebody needs to make TDCJ produce a "Plan B" that involves reducing prison capacity before they get too much further into the process.

Judging from the discussion Tuesday, corrections shouldn't be exempted from budget cuts, as TDCJ has requested, but instead budget writers should view TDCJ as the one big state agency where it's possible to cut smartly. On some of the other big ticket items like education, pensions and healthcare, the solutions aren't so obvious.

My second overall impression was that the extent of the seeming consensus by officialdom was remarkable, suggesting that perhaps it's time to re-examine some of the money-saving options from the original legislation that were left, as they say in Hollywood, on the cutting room floor back during the original sausage law making process.

The history of Texas' recent probation reform legislation began in 2003, when then House Corrections Chairman Ray Allen passed a bill mandating probation on the first offense for less-than-a-gram drug offenders, a move which diverted up to 4,000 offenders per year from state jails. Then in 2005, a strong bill prepared during the interim was gutted with amendments forced on the House floor by then-Reps Terry Keel and Robert Talton, who eventually convinced the Governor to veto the legislation entirely. Rep. Madden, who'd worked on the legislation for two years with Sen. John Whitmire, amended his bill to make it apply to a much smaller number of offenders after Keel predicted on the House floor, in bombastic, over the top language, that a massive, inevitable crime wave would ensue if the bill was passed. In 2007, with Keel gone, the Lege re-passed virtually the same (post-amendment) bill, and the Governor signed it rather than spend $1 billion to build and staff three new prisons.

Now, with the benefit of hindsight, we can see that all those dire predictions turned out to be wrong and the folks testifying Tuesday told the committee the changes were working well. What's more, the main critics of the legislation are now out of office, and Texas has gained national acclaim on the topic.

That suggests to me that 2011 might be a great time for the Corrections Committee (or Sen. Whitmire's Criminal Justice committee) to go back and re-file portions of the original 2005 bill that were stripped off in the House. It'd be the legislative equivalent of picking up a spare, and would build on the remarkable successes of the 2007 reforms. The consensus statewide among judges and probation officials about the wisdom of the approach is much stronger than it was back then. (There weren't nearly as many vocal, CSCD directors coming out to support reform in 2005 or 2007.) Combined with reconfiguring state drug laws, those policy changes would further shift corrections' focus from incarceration to probation, fulfilling myriad public policy goals, from budget cutting to reducing crime.