Sunday, April 20, 2014

Ellis, Harrington: Reduce incarceration levels at Harris County Jail

State Sen. Rodney Ellis and Texas Civil Right Project chief James Harrington recently wrote a letter to the Harris County Budget and Management Office suggesting alternatives to incarceration to avoid continuous requests for variances from the Texas Commission on Jail Standards for extra jail beds, something the county has done eleven times since 2006. According to the letter:
Harris County's criminal justice system ... continues to use incarceration as its primary way of dealing with individuals with mental illness and low-level drug users. About a quarter of the inmates in the Harris County Jail are taking some kind of medication for mental illness. When looking at the six largest counties in Texas, Harris County leads in the annual number of people per capita it sends to state jail for low-level drug possession of less than one gram.

Spending taxpayer dollars to incarcerate non-violent offenders would make sense if it made our community safer, but studies show that these options are less effective and more expensive than strategies that divert defendants charged with non-violent crimes from incarceration.
Harrington and Ellis argue that the county should develop a written plan to eliminate extra jail beds and embrace alternatives to incarceration, including several specific examples. See the full letter for details.

See related, recent Grits coverage.

Wednesday, April 16, 2014

Radio discussion of Texas' Driver Responsibility surcharge

In the wake of Monday's public hearing on the topic, I was interviewed this afternoon on Texas Public Radio's KSTX out of San Antonio along with Ana Yañez Correa of the Texas Criminal Justice Coalition and John Hawkins from the Texas Hospital Association about Texas' Driver Responsibility surcharge. Go here to listen to the 21.5 minute segment which included several callers critical of the program, some of whom had personal experience struggling to pay or even understand the surcharges levied against them. For more background, see TCJC's website devoted to abolishing the program.

Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'

The Texas Department of Criminal Justice (TDCJ) this week sent me the consultant's report regarding what would be required for Texas' adult prisons to comply with the Prison Rape Elimination Act, a document I requested under the open records act following Gov. Rick Perry's letter to US Attorney General Eric Holder announcing the state would not comply with PREA.

TDCJ brass were closely involved in the development of recommendations by The Moss Group, the consulting firm referenced in Perry's letter. According to the report, "top-level central and regional office executives and unit based senior management staff actively engaged in the analysis and remedy process along with the consultant team. Their daily participation and interaction with the consultant team is a testament to the value and importance they have placed on realizing compliance with this PREA standard."

Indeed, it appears the Governor's letter significantly overstated the scope and negative impact of the consultants' recommendations. Wrote Perry:
Because PREA standards prohibit most cross-gender viewing, TDCJ would be compelled to deny female officers job assignments and promotion opportunities, simply based on their gender. A consultant referred to TDCJ by the PREA Resource Center absurdly suggested that TDCJ solve this problem by removing security cameras and obstructing line of sight. That is ridiculous. Doing so would not only be a security risk for both prisoners and staff but also increase the likelihood of assaults taking place, defeating the intent of the law.
As it turns out, that was an exaggeration. The recommendations would by no means "prohibit most cross-gender viewing." In fact, the limitations suggested were remarkably modest and narrow.

As far as "removing security cameras," there were two references. They suggested that cameras shouldn't be "pointed directly into the dormitory bathrooms allowing remote cross gender viewing of inmates," noting that "it is not a mainstream practice to have cameras pointed directly into toilet and shower areas." If it's true that's "not a mainstream practice" and other correctional facilities across the country operate without aiming cameras at the bathrooms, why can't TDCJ?

Similarly, regarding "obstructing line of sight," the consultants suggested that "privacy mesh screens could be used to obscure the inmates' buttocks and genital areas during strip searches while still affording staff appropriate views of the inmates for security purposes." In documents that TDCJ (inexplicably) did not include in their response to my request, "The process of identifying the precise spots on the floor or ground that could be marked where inmates could stand to be outside of camera or other view was laid out." The goal was to "moderate or curtail" cross-gender viewing, not to ban it.

The other mention of obstructed viewing involved work areas and housing pods "where inmates could be viewed showering or using the toilet facilities," but the consultant said those "were less of a challenge. The team found that many of the areas currently open to cross-gender viewing could be easily mitigated with half shower doors and privacy panels that would not impede security viewing of the offenders."

The report did not suggest eliminating female CO positions nor that women officers couldn't staff men's prisons, nor would the recommendations forbid viewing inmates in showers and restrooms for security purposes. They recommended slight modifications in how pat down searches were conducted but didn't say women couldn't do them. And they recommended that female "escort staff" move out of the line of sight when strip searches were being performed. But if they're not performing the strip searches, anyway, such a restriction hardly means TDCJ would be "compelled to deny female officers job assignments and promotion opportunities, simply based on their gender."

Overall, the consultant found that TDCJ for the most part complies with the law already and did not have far to go to meet PREA standards. "Prior to the onsite work, TMG Consultant Jeff Shorba conducted a review of TDCJ policies related to cross gender viewing and searches. He found the policies to be comprehensive and well written and needing only very minor refinement. It is clear that TDCJ has expended enormous effort in the timely address of PREA requirements." That and the fact that TDCJ's general counsel seemed unaware of the governor's concerns makes one wonder about the defiant tone in Gov. Perry's letter.

Indeed, nobody at TDCJ seemed to have told the consultant their concerns were "absurd." Instead, "The department and unit staff appeared receptive to the recommendations offered and seemed confident that the solutions proposed were reasonable and viable." It's difficult to understand how Texas got from there to Gov. Perry calling the recommendations "absurd," "ridiculous," "ill-conceived," and "inconsistent" with federal laws.

I was only sent this six-page memo, but it appears there should have been more documentation that was responsive to my open records request. I sent TDCJ a followup email yesterday declaring:
I'd also asked for any correspondence to and from the consultant. Is it the case that no one at TDCJ had any email exchanges with the consultant before or after this report was issued? That seems unlikely. If there was such correspondence, please find it and forward it, including any attachments.

In addition, according to the report, "At the end of each unit analysis, a comprehensive, facility-specific closeout detailing findings, conclusions and recommendations was conducted." However, those facility-specific recommendations were not included in your response. Could you please locate them and forward them? That information to me seems as though it should be responsive to my March 28 request.  
If I get more details in response, obviously I'll post them at a future date. The whole episode strikes me as peculiar. You'd think if TDCJ found the consultant's recommendations untenable, somebody would have mentioned it to The Moss Group before the governor issued his letter.

See prior, related Grits posts:

Tuesday, April 15, 2014

Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions

The Texas House Homeland Security and Public Safety Committee yesterday met to discuss suggested reforms to the misnamed "Driver Responsibility Program" (in addition to hearing invited testimony about the fertilizer plant explosion in West last year). See coverage of the hearing from the Houston Chronicle, the El Paso Times, and the Texas Tribune.

Your correspondent and numerous others have been trying to get the Legislature to reform or preferably abolish this program for years, but this may be the first time a legislative committee has fully embraced the idea that major revisions are necessary and the program may need to be scrapped. You can watch the hearing online here. The portion on the Driver Responsibility surcharge begins at the 2:21:45 mark.

Here's a link to written testimony I presented on behalf of the Texas Criminal Justice Coalition and a report on the topic (pdf) that the group published last year. TCJC has put up a website advocating abolition of the Driver Responsibility surcharge to provide background and gather stories from people who've experienced problems with this misbegotten policy. Check it out and, for those affected, add your story.

First up at the hearing were two representatives from DPS described a range of suggestions for reforms developed in a working group with their vendor and reps from the Travis County courts. Grits last year acquired their list of recommendations under open records. See it here (pdf). A few of their suggestions can be implemented administratively without legislative authorization and some of them will be included in new rules that will be presented in June to the Public Safety Commission and published in the Texas Register soon thereafter for public comment. Most of the significant changes, though, would require legislative action.

Even Bill Lewis of Mothers Against Drunk Driving spoke favorably about TCJC's written testimony (see his remarks at the 3:23:50 mark), which overall seemed well received by the members. He supports the surcharge because part of it pays for uncompensated care at trauma centers in Texas hospitals, which play a huge role in saving drunk driving victims. But he was open to subsidizing hospitals in other ways - e.g., potentially a small, additional dedicated tax on alcohol. He acknowledged that the surcharge has no deterrent effect on DWIs, in part because nobody knows about it (he called it "virtually a secret program"). Others testifying reiterated that most drivers know nothing about the program and many people pay tickets for no driver's license or no insurance without understanding they'll later face three years of surcharges. Lewis suggested that judges be given flexibility to reduce or waive surcharges in DWI cases.

One unintended consequence to the surcharge received more attention at yesterday's hearing than it has in the past, though the problem has been ongoing: Judges and prosecutors who consider the surcharges unjust have been allowing defendants charged with DWI to plead to lesser charges to avoid them. Rebekah Hibbs of DPS told the committee about a county that called them to ask if the charge of "obstruction of a roadway" carried a surcharge. She told them "no" and they replied that, in that case, they were going to begin pleading all their first offense DWIs to that charge to keep the surcharge from applying.

Retired Judge David Hodges (see his testimony @ 4:08:55), who now conducts training for judges on behalf of the Texas Association of Counties, told the committee that the surcharge law caused a 30% reduction in DWI convictions from 2003 to 2013, even though the number of arrests for DWI has increased. He said an officer from the Bryan-College Station area told him just last week that first-offense DWIs in his county were being charged as obstruction of a roadway for just that reason. Hodges suggested that, if the surcharge were eliminated, the state would likely see more additional fine and court cost revenue from DWI cases than it was gaining from the surcharge, suggesting that some of that money could be designated for trauma centers.

Hodges also suggested that reinstating deferred adjudication for DWIs might help the situation, since deferred cases don't formally result in a conviction and thus wouldn't incur a surcharge. Deferred adjudication was eliminated for DWIs a few years back in one of the Lege's reflexive spasms of tuff-on-crime demagoguery.

MADD's Bill Lewis offered particularly remarkable testimony regarding the surcharge-driven decline in DWI convictions, declaring that his group "agree[s] that DWI surcharges may actually hinder DWI prosecution." But, said Lewis, "when you get right back down to it, we've made the judgment that it's more important for the trauma centers to be there and to be well funded than it is to be disposing of DWI cases." Just think about that! The idea that MADD is willing to tolerate fewer successful prosecutions for DWI to keep trauma hospitals funded struck me as downright amazing. Obviously, he'd prefer those cases were successfully prosecuted, referring to the account of counties pleading the charges down as "horror stories." The surcharge has placed MADD in a Catch-22 situation, forcing them to choose between prosecuting drunk drivers and maintaining a robust trauma care system to deal with the aftermath of crashes caused by drunk driving.

But the star of the show was Williamson County Justice of the Peace Edna Staudt (@ 3:34:36 on the video), who launched an impassioned jeremiad against every aspect of the program. Of all the speakers, including those from the hospitals, she was the only one who refused to offer reform suggestions, insisting that the program was so badly broken that nothing but abolition would suffice. "This program creates more havoc and more mess than its worth," she told the committee. "It is an unjust system."

She told the committee that the income thresholds on the indigency and incentive programs were too low to help average, working people who still couldn't afford to pay their surcharges and needed driver's licenses to be able to work and feed their families. She also complained that the surcharge usurped judicial authority and was creating a "debtors prison" situation where people who couldn't pay would lose their licenses, then later be charged with a crime for not having a license and end up in jail. Suggestions by DPS to crack down even harder for nonpayment of surcharges, she said, would make the situation even worse.

The truth is, Judge Staudt is 100% right. TCJC offered suggestions to mitigate harms because the Lege has been unwilling to confront the issue head on. But even in our written testimony, we emphasized that, "The Texas Criminal Justice Coalition hesitates to suggest reforms that might make the Driver Responsibility surcharge sustainable, even temporarily, because the program is fundamentally unfair and suffers from deep, abiding flaws. The Legislature should eliminate it entirely and pay for trauma hospitals out of general fund revenue or some other source."

The only serious pushback against reform at this point comes from trauma hospitals that receive millions in funding from the surcharge. Their situation has become even more tenuous after the state refused to expand the Medicaid program under the federal Affordable Care Act, as they're losing millions because of reductions in Disproportionate Share Hospital funding that pays for uncompensated care. (The ACA reduced that funding on the grounds that Medicaid expansion would cover most of those uninsured patients.) So if the Legislature were to abolish this program, they'd need to find an alternative funding source to subsidize trauma hospitals. Chairman Picket likened the task to the scene from Raiders of the Lost Ark where Indiana Jones swapped a bag of sand for an idol, but said it needed to be done in such a way that did not result in a giant stone ball hurtling toward their backs.

Even the hospital reps, though, acknowledged that changes must be made to address unintended consequences facing drives, supporting a more robust Amnesty program and other reforms tinkering around the edges of the program. From my own, private conversations with the hospital folks, it's clear to me they wouldn't mind if the surcharge went away entirely so long as they continued to receive subsidies for uncompensated care. They just can't afford to lose the surcharge money at a time when federal subsidies for uncompensated care are being cut and the state seems unlikely to expand Medicaid anytime soon.

Grits was cautiously encouraged by the committee's reaction to yesterday's testimony. For perhaps the first time, this committee seems to have fully grasped the profound failings of the Driver Responsibility surcharge and appears to be forging a consensus that it must be either eliminated or subjected to radical reform. The main barrier to abolition will be finding money for the trauma hospitals, but that's not insurmountable. As I told the committee, the program is "a train wreck" and even its supporters can see it's not viable in its current form.

MORE (April 16): See an El Paso Times staff editorial advocating abolition of the program.They conclude, "Clearly, the Driver Responsibility Program is a failure. The Legislature should acknowledge that and repeal the law next year."

See prior, related Grits posts:

Monday, April 14, 2014

'Private defender' model suggested for Travis County

Travis County is considering big changes to the way it delivers indigent-defense services, taking most decisions out of the hands of judges and giving them to "a new office of Travis County Private Defender — an estimated $670,000 nonprofit under the control of the private defense bar," which "would assign lawyers to indigent cases, determine compensation for their work and derive a set of standards to evaluate their performance, the Austin Statesman reported Friday.

Travis County judges have already given up most authority to appoint attorneys - all of them use a "wheel" system that "has evolved into an electronic process under the Office of Court Administration, which takes applications from lawyers who wish to receive court-appointed referrals." Though "judges decide who stays on the list and what level of cases they are equipped to handle, an evaluation of now more than 250 attorneys that they say is cursory and happens only once a year."

As described the system aims to address the plea mill scenario created by high-volume legal representation:
There are no regular measures to review attorney caseloads, while judges have disparate methods for providing compensation and resources, and some decline to pay for more work, defense lawyers said. The result is a treadmill, on which lawyers are pushed to take quick plea agreements rather than taking more time on investigations or going to trial and on which defendants, many of whom are minorities, become trapped in the system, attorneys and legal officials said.

“I have had judges deny me the right to an investigator. I’ve had judges say, ‘Whatever you need,’” defense lawyer Jackie Wood said. “I would hope that one person or one office making the decisions would be better and more consistent than six or seven different personalities.”
That sounds good on its face, but in the end the question will come down to the amount of resources devoted by the county to indigent defense. A bureaucracy can deny funding for investigators as easily as a judge if the money isn't there.

Opposition to the idea, wrote reporter Jazmine Ulloa, comes from criminal defense lawyers afraid that "judges are simply looking for a way to trim attorneys who they believe are unqualified from the court-appointment wheel," complaining that "such cuts wouldn’t help those lawyers improve and would only lead to higher caseloads for others who remain on the list." That aspect of the change doesn't bother me, I must say, though I wish our elected judges would take care of the problem instead of outsourcing it to a nonprofit. However, I've worked my share of judicial elections and know judges are loathe to threaten the income of their most reliable source of campaign contributions. So I understand why it's difficult for them to manage that part of the process.

Even so, personally I'd prefer the county fund a full-blown public defender office to handle a significant chunk of its regular caseload, a model that has worked well in Dallas and Houston. From all I've heard, the parts of the Travis County system with public defenders (juvenile and mental health cases) work just fine. Why not expand the concept to handle more of the regular adult caseload?

The private defender model aims to fix only one aspect of the problem - appointment of unqualified attorneys - but cannot resolve two other issues that PDs are better suited to addressing: Resource allocation and providing an institutional counterweight to the District and County Attorneys Offices. Though PDs often get short-changed in the budgeting process, I feel like a formal division of government has a better shot at pushing for its fair share than a disparate group of private, self-interested attorneys running a couple hundred separate small businesses milking the government teat.

Which brings me to my second reason for favoring a public defender: On county-level policy issues, they provide an institutional presence that the private bar cannot muster. From pretrial detention policy to post-conviction SNAFUs like the Jonathan Salvador case, prosecutors tend to dominate local criminal-justice decision making. But counties with public defenders automatically have someone at the policy making table when important issues are discussed. And PDs provide a pool of expertise that becomes a resource for the entire criminal defense bar. The proposed private defender model - even if it's adequately funded - cannot meaningfully fulfill that institutional role.

Usually my (admittedly low) bar for whether to support a public policy change of this sort is whether the suggestion would be an improvement over the status quo. The suggested Travis County Private Defender probably meets that standard, but not by much. They'd be better off creating a full-blown public defender office to handle part of the adult caseload. It sounds like this process is pretty far down the road so I don't know if that can still happen, but it'd be my preference.

Thursday, April 10, 2014

Who is advising Rick Perry on prison rape?

After this blog broke the story about Gov. Rick Perry's letter to US Attorney General Eric Holder telling him Texas wouldn't comply with the Prison Rape Elimination Act, I sent open records requests to the Governor's office and the Texas Department of Criminal Justice asking for "copies of any report by the 'consultant referred to TDCJ by the PREA Resource Center' referenced in Gov. Perry's March 28 letter to US Attorney General Eric Holder as well as any correspondence to and/or from said consultant."

On Wednesday, I received an email from Assistant General Counsel Chris Sterner from the governor's office informing me that, "we have determined that the OOG has no information responsive to your request.  You may, however, wish to contact The Texas Department of Criminal Justice ('TDCJ') to obtain the requested information."

Here's the funny thing about that: I sent the same request to TDCJ at the same time I asked the governor. Last week I received a phone call from a legal assistant in TDCJ's general counsel's office, Jessica Cole, asking me to send them a copy of Perry's letter, which I did. She said the TDCJ general counsel's office knew nothing about any consultant's report and they appeared to know nothing about the governor's letter, either. I told her it had been covered pretty widely in the mainstream media and she replied, jokingly, "well, we don't get out much."

Cole told me on the phone April 2nd that the agency appeared to have no information responsive to my request. But I asked her to follow up with TDCJ's PREA Compliance division to make sure. Yesterday I received another email from Cole asking me to re-send Perry's letter to another legal assistant in their office. He is apparently following up and maybe they'll find the report, assuming it exists.

Still, all this strikes me as quite strange. Governor Perry sends a strident letter to the feds claiming Texas can't comply with PREA because a consultant issued "absurd" recommendations that would violate federal labor law. But the governor's office hasn't seen the consultant's report and the TDCJ general counsel's office a) knew nothing about a consultant and b) hadn't seen Perry's letter.

The fact that neither Perry's office nor the TDCJ general counsel have seen a consultant's report makes me wonder who wrote this letter. Based on whose legal advice did Perry conclude that complying with PREA "would likely cause the Texas Department of Criminal Justice (TDCJ) to violate federal labor laws"? Was that an actual legal interpretation or some sort of political grandstanding? Where is the governor getting his legal advice on this topic?

It begs credulity to imagine Perry authored that letter himself. One wonders, who wrote it and why didn't Perry's office run it by TDCJ's lawyers?

Perry's decision to thumb his nose at PREA regulations has received national attention, so maybe it was just a way to play to the GOP base by snubbing the Obama Administration in preparation for his widely anticipated (re)run for president. I can't tell what's going on. It's a head scratcher.

First alleged serial rapist identified from Houston rape-kit backlog

Grits reported on Sunday that the Houston crime lab identified hundreds of hits when it ran results from old rape kits through CODIS, the national DNA database, including 26 possible serial rapists. Now, Houston PD has identified the first of those, the Houston Chronicle reported yesterday:
Houston police on Tuesday for the first time identified a criminal suspect - a possible serial rapist - from testing of sexual assault kits that once gathered dust in the police property room.

HPD sex crime investigators said Herman Ray Whitfield Jr., 43, has been charged with four counts of aggravated sexual assault going back to 1992, and said he may have had more victims. One of his victims, police said, was a 12-year-old.
DNA linked Whitfield to four local cases, with victims ranging from 12 to 30 years old.

As Grits reported over the weekend, the crime lab has uploaded samples to CODIS in 1,662 cases out of 9,723 samples outsourced to private vendors for analysis. So far, they've found 607 "hits," including 26 instances with multiple "hits" on the same alleged offender, apparently including Mr. Whitfield.

We can expect numerous iterations of this same story in the coming months (and possibly years), including some instances where crimes have passed the statute of limitations and can't be prosecuted.

Report: Texas jails and prisons warehousing thousands of mentally ill

The Treatment Advocacy Center has issued a new report titled "The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey." Here's a notable excerpt from their findings on Texas:
The North Texas State Hospital, with 692 beds, is the largest remaining state psychiatric hospital. The Harris County Jail in Houston, where “25 percent of the prisoners receive psychotropic medication” (Bellaire Examiner, May 18, 2012), has over 8,000 inmates and thus is certainly the largest “mental institution” in the state. In Bexar County, “about 21 percent of the inmates suffer from mental illness” (San Antonio Express-News, Aug. 8, 2010). In both Bell and El Paso Counties, “about 40 percent of the inmates” are being treated with psychotropic medications “or need those medicines” (Texas Tribune, Dec. 16, 2010; KWTX, July 24, 2013).

One of the most depressing aspects of the situation for prison and jail officials is to see the same people repeatedly cycling through their facilities. In Harris County, almost 600 mentally ill individuals “cycled through the jail at least five times in the past two years” (, May 22, 2013). They include Patricia George, 34 years old and diagnosed with schizophrenia; she has been charged with 31 misdemeanors and 12 felonies and has already spent nine years in jail (Houston Chronicle, July 21, 2008).

Texas is among the states with the lowest number of public psychiatric beds and among the stingiest states in per capita mental health spending. Some of the jail overcrowding is directly attributable to having no available psychiatric beds. In 2010, the Bexar County Jail had 100 jail inmates waiting to be transferred to a state hospital, and the Dallas County Jail had 103; since then, the situation has only gotten worse (San Antonio Express-News, Aug. 8, 2010).
The group's recommendations were to:
  1. Provide appropriate treatment for prison and jail inmates with serious mental illness
  2. Implement and promote jail diversion programs
  3. Promote the use of assisted outpatient treatment (AOT)
  4. Encourage cost studies
  5. Establish careful intake screening
  6. Mandate release planning
See additional coverage from MSNBC.

H/T: Sentencing Law and Policy.

Epic Fail: Critiquing the 'Driver Responsibility' surcharge

At the Texas Tribune, Cathaleen Qiao Chen has a substantive overview of problems with the Orwellian-named "Driver Responsibility" surcharge in which your correspondent is quoted. Long-time readers know of Grits' profound disdain for this program, in which 60% of assessed penalties go uncollected. Around 1.3 million Texans currently have suspended licenses because of the surcharge, which is a civil penalty assessed in addition to criminal fines and penalties for offenses like driving with an invalid license, no insurance, and DWI. Williamson County Justice of the Peace Edna Staudt told the Trib that "she believes the program is unconstitutional because it penalizes drivers twice for the same violation."

I'm all for funding the state's trauma hospitals but this is the wrong way to do it. Better to pay for them out of the general fund or charge sin taxes on alcohol or junk food. A slight reduction in the amount socked away in the state's "rainy day fund" would easily do the trick. Besides, the state isn't distributing all the money to hospitals anyway, hoarding hundreds of millions in the "dedicated" account for trauma centers in order to help balance the budget. There's enough money in that account that, at current payment rates, the state could fund trauma centers through 2021 even if the Lege decided to abolish the surcharge next year. And half the surcharge money goes off the top straight into the general fund - hospitals never see most of it.

I've been performing some consulting work for the Texas Criminal Justice Coalition on the topic, helping them prepare reform proposals for a legislative committee hearing on Monday. Grits will post more on the topic after the hearing.

See prior, related Grits posts:

Wednesday, April 09, 2014

Colloff recounts CCA oral arguments on Hannah Overton writ

Pam Colloff at Texas Monthly has posted an item describing oral arguments regarding the habeas corpus writ for Hannah Overton, a Corpus Christi mother of five who was prosecuted for capital murder for the alleged poisoning of her four-year old foster child. This detail jumped out: Remarkably, [Nueces ADA Doug Norman] distanced himself from the most damaging charge that prosecutors had made against Hannah at her murder trial: that she had pinched Andrew’s nose, gripped him around his neck, and forced a lethal slurry of salt and water down his throat."

Instead, prosecutors are hanging their hats on the theory that Overton delayed taking her child to the emergency room. Wrote Colloff, “Technically, Norman was right; according to the unusual wording of the jury charge at Hannah’s trial, jurors had only needed to believe one of two scenarios to find her guilty: that she deliberately made Andrew ingest a lethal amount of salt, or that she purposely neglected to get timely medical attention, knowing that this would kill him. In fact, as the polling of jurors showed after the guilty verdict was handed down, not one of the twelve jurors believed that Hannah had poisoned Andrew, but they had still found her guilty of capital murder 'by omission,' or by failure to act.”

The idea of capital murder by omission ranks as one of the stranger legal theories Grits has run across. I always thought that's what manslaughter charges were for. See Colloff's earlier coverage of the case.

Tuesday, April 08, 2014

Ramped up enforcement along Texas border failed to raise drug prices

To understand the failure of the drug war in Texas, one need look no further than the opening few minutes of DPS Col. Steve McCraw's testimony yesterday to the Texas Senate Committee on Agriculture, Rural Affairs and Homeland Security.

According to McCraw, in the last three months local, state and federal law enforcement agencies have seized more than 350,000 pounds of marijuana in Texas' border region, as well as more than 1,000 pounds of methamphetamine, more than 125 pounds of heroin and more than 1,800 pounds of cocaine.

The logic behind drug interdiction is to remove illegal drugs from the market, making them more scarce. If successful, the tactic should increase the price of drugs. But the opposite is occurring. According to McCraw, in 2009 - which was the year DPS's souped up border security efforts began - the cost of marijuana was $551 per pound; today, it's $452 per pound. Cocaine was $29,000 per pound, he said; today it's $11,000 per pound. Meth was $37,988 per pound in 2009, said McCraw; now it's $14,866. Heroin was $40,000 per pound in 2009; now it's $21,534.

Think about what that means: According to basic principles of supply and demand, reducing supply should increase prices. But that's not what's happening. Despite Texas and federal agencies spending hundreds of millions of dollars to combat smuggling along the Texas-Mexico border, drug prices are getting cheaper, implying that supplies are expanding, not contracting.

Supply-side interdiction is not working, even for marijuana, which accounts for the overwhelming majority of drugs being captured by law enforcement.

Lauding the merits of a 21-day "surge," which was highly controversial in the Rio Grande Valley, McCraw, said the best solution is to "saturate high-visibility patrols where there are clusters of crime" between the checkpoints. He claimed the strategy resulted in radical reductions of smuggling during that period, insisting there's "no question it can be done."

To me, though, his testimony raises serious questions whether it can be done. For starters, most smuggling happens through the checkpoints, not in between them, as Sen. Juan Hinojosa pointed out. And just like when you squeeze a balloon, cracking down in one spot only causes smugglers to shift to other areas. Even if drug smuggling reduced significantly during that 21-day period in the area DPS "surged" - and for my part I find that claim suspect - there's no evidence the tactic reduced overall drug supplies. Indeed, it's clear that, over time, increased spending on law enforcement at the border has failed to reduce drug supplies, judging from the reduced drug prices McCraw cited.

Make us proud, Frisco

A couple of screwed up stories about the Frisco PD:

Monday, April 07, 2014

Report: Systemic problems with Houston crime lab employee

This MyFoxHouston item (April 1) by Isiah Carey alleging problems at the Houston crime lab is too vague to be probative, but it provides provocative hints:
new internal investigation underwayat HPD's Crime Lab.  It all came to light after an employee we're not identifying abruptly resigned in mid-March.

That investigation examines whether the employee - a criminalist for two years - did not follow procedures.  Our sources tell us it's how the former worker handled evidence in criminal cases assigned to the division. ...
FOX 26 Legal Analyst Chris Tritico says he believes the crime lab worker's actions have the potential to harm cases that are currently in the hands of the D.A.'s office.

Tritico says, "they have to notify defense attorneys and every defendant that's been affected by this person's work."

A spokesperson for HPD confirms the internal probe but declined to go into any detail about how many cases if any could be affected by the former crime lab employee.
We've obtained an internal memo written by HPD's Crime Lab Director IrmaRios.
It's the notification of the former employee's resignation from the crime lab. In that memo Rios says quote - I would not recommend the worker be rehired.
Impossible to tell from that tidbit what the problems might be, but stay tuned.

Whether issues with this employee rise to the level of the Jonathan Salvador fiasco remains to be seen, but this issue of how to respond to systemic forensic errors promises to be a recurring theme for 21st century criminal justice.

MORE: From attorney Paul Kennedy at The Defense Rests, who speculates that the former crime lab employee under investigation may be Michael Manes, former manager of the Toxicology section who "has left the building and is now working in Montgomery County with the Sheriff's Office or as a forensic-analyst-for-hire depending on who you talk to." Kennedy's suspicions were heightened because "a current case of mine has a lab report [in which] Mr. Manes performed the technical review (looking at the paperwork) last summer but was suddenly re-reviewed by a new supervisor in mid-March with no apparent explanation." A commenter supplied a link to Manes' LinkedIn page, which hasn't been updated to denote his departure from the Houston crime lab. He previously worked for the Brazoria County Sheriff then for a lab in the Woodlands operated by Sam Houston State University before joining then leaving HPD.

Attorney General: State fire marshal may continue arson review

The Texas Attorney General ruled on Friday that the state fire marshal has authority to review old arson cases, rebuffing West Texas DA Rod Ponton who'd hoped the AG would intervene to stop its consideration of bad science in the Sonia Cacy arson case, in which the court this week will consider a habeas corpus writ based on actual innocence and junk science claims. The Austin Statesman's Chuck Lindell reported today:
The State Fire Marshal’s Office may continue reviewing old arson cases for bad science, Attorney General Greg Abbott said in a formal opinion released Monday.

Nothing in state law limits the office from testing old convictions to determine if the arson cases were based on science or scientific techniques now known to be flawed, false or misleading, the opinion said.

The opinion was in response to a West Texas prosecutor who was upset after the review raised questions about a 1993 murder conviction.

Rod Ponton, district attorney of a four-county area that includes Fort Stockton, believed the fire marshal overstepped his authority by examining — and discrediting — evidence used by his office to convict Sonia Cacy of dousing her uncle with gasoline and setting him alight.

In a letter dated Oct. 1, Ponton asked Abbott to determine that the fire marshal has “no authority to make sweeping legal pronouncements on 20-year-old criminal cases.”

Abbott’s opinion, however, stated that state law gives the fire marshal broad authority to investigate cases of arson and suspected arson.
In the Cacy case, reported Lindell:
According to the [state fire marshal's] experts:
  • Today’s science doesn’t support a finding of arson. Instead, the cause of the Cacy fire should have been listed as undetermined.
  • The most damning evidence — a forensic test that found gasoline on her uncle’s clothes — was based on misinterpreted results.
  • With no smoke inhalation or heat damage to [alleged victim Bill] Richardson’s throat and lungs, there is no evidence he was alive at the time of the fire.
Instead, it appears that Richardson, a 76-year-old who smoked up to three packs of cigarettes a day, died of a heart attack while smoking in bed, Cacy’s lawyers argue, adding that numerous burn marks on the furniture show that Richardson was a careless smoker.

Other experts reached similar conclusions in 1998, prompting the Texas Board of Pardons and Paroles to order Cacy released from prison after serving less than six years of her 99-year sentence. Cacy’s murder conviction, however, was unaffected, and she remains on parole.

Defense lawyers have filed an appeal to overturn the murder conviction.
Meanwhile, my colleagues Nick Vilbas and Jeff Blackburn from the Innocence Project of Texas (IPOT) reported Friday morning at the Forensic Science Commission that the fire marshal's Science Advisory Workgroup (SAW) has identified junk science used to secure convictions in five cases so far, including Cacy's. IPOT sent questionnaires to more than a thousand prisoners in TDCJ convicted of arson, getting responses back from about a quarter of them. Prioritizing murder cases, they vetted them to identify instances where convictions relied solely on testimony from arson investigators and older, outdated techniques, forwarding nine of them so far to a committee of experts convened by the fire marshal. Of those, five of them relied on bad science, in two of them science supported the original conclusion, and two cases had inconclusive results.

The review was not comprehensive. Most prisoners did not return questionnaires and many people convicted were sentenced to probation or had already been paroled. But so far, about two percent of older arson cases examined involve people who claimed innocence and were convicted based on what's now considered junk science - less than one might have expected going in. (The Todd Willingham case, having already been vetted by numerous experts including an extensive report [pdf] from the Forensic Science Commission, was not among the nine reviewed by the fire marshal.)

Those numbers are lower than some experts predicted when the review began. In many cases, there was other evidence besides expert testimony - including confessions, video, and eyewitnesses - that supported findings of guilt. Many inmates who returned the questionnaire did not dispute that they'd started a fire. Blackburn told the commission that the relatively low number of possible innocence cases identified should inspire confidence in the process.

Going forward, now that fire marshal has vetted murder cases, IPOT will be assisting the agency reviewing non-murder cases starting in 2002 (the agency only keeps files going back 12 years). Said IPOT's Nick Vilbas, "We should be able to find some other cases needing review by the SAW panel through this process."

MORE (April 9): The Austin Statesman editorial board praised the new AG opinion and encouraged the fire marshal's arson review to continue.

See related Grits posts:

Sunday, April 06, 2014

Houston crime lab found hundreds of CODIS 'hits' in rape-kit backlog

When Houston PD began processing backlogged rape kits in reaction to SB 1636, crime lab director Irma Rios told the Texas Forensic Science Commission on Friday, they outsourced 9,723 cases to private vendors because they lacked internal capacity to handle the volume. Of those, so far they've received reports back on 8,450 cases and lab workers have reviewed 5,651 of them.

Here's the astonishing part, though: As a result of those reviews, the lab uploaded 1,662 cases to CODIS, which is the national DNA offender database, and found 607 "hits," meaning they identified a suspect whose DNA matched the rape-kit sample. That's about 36.5% of cases uploaded. And 26 of those may be serial rapists - i.e., they got multiple hits for a single offender.

So Houston PD had rape kit evidence in their possession that could have solved these crimes but the evidence had never been tested!

To her credit, that's exactly what state senator and now-gubernatorial candidate Wendy Davis predicted when she sponsored SB 1636. She'd wanted to require backlog testing but couldn't secure funding and so the watered down version that finally passed required testing only if funding is available to do so. That legislation spurred Houston to confront its backlog, but other agencies have pled poverty and still haven't tackled the problem. (UPDATE: The Texas Lege last year earmarked $11 million in the DPS budget for testing old rape kits.)

Many of these were older cases dating back to the 1980s, so for some of them the statute of limitations has run out and the cases can't be prosecuted. But prosecutors can use the evidence to help enhance (read: boost penalties) for future crimes and also to oppose parole for those locked up in Texas prisons for other offenses, which includes a significant number of those identified. Rios didn't detail the criteria by which they chose to update results to CODIS, so we can't know whether there may even be more cases from the backlog where it's possible to identify perpetrators or potentially exonerate people who were wrongfully convicted.

The Houston crime lab recently was moved out from under the police department's management structure and into an independent local government corporation with its own board.  They're currently one of two cities (Detroit is the other) with a National Institute of Justice grant to study how to prioritize testing rape kit backlogs. (See prior Grits coverage and a website devoted to the grant project.)

Rios estimated that there are about 400,000 untested rape kits sitting around in police department evidence rooms nationwide.

Thursday, April 03, 2014

Advocates preview 2015 Lege agendas

On Friday at 1:30 p.m., the Texas Criminal Justice Coalition and the Texas Public Policy Foundation will give presentations at a criminal-justice forum sponsored by the Legislative Budget Board discussing the group's agendas for the coming legislative session. See details here. Your correspondent can't make it as I'll be at a Forensic Science Commission meeting and then, in the afternoon, tutoring 4th and 5th graders at a Math Pentathlon practice session. But I'll see if the presenters will let me post any handouts from the event and if so, add them to this post.

MORE: See TCJC's power point presentation (ppt), a handout detailing their Lege agenda, and a timeline of recent criminal justice reforms. AND MORE: Here's the TPPF presentation. Thanks to Ana Correa and Marc Levin for sharing them.

'Major use of force' up at TDCJ prisons

The Texas Tribune's new criminal-justice beat reporter Terri Langford has an item today titled "Force against Texas inmates on the rise." Here's a notable excerpt:
Despite a decrease in the prison population from 2005 to 2013, the number of “major use of force" incidents grew some 17 percent, according to statistics kept by the Texas Department of Criminal Justice.

While TDCJ officials say the fluctuations are random and can’t be tied to any one factor, other experts say the increase in reported use of force is a symptom of an inexperienced officer corps and an often overheated environment.

The number of “major use of force" incidents rose to 7,151 in 2013 from 6,071 incidents in 2005, according to TDCJ statistics. Jason Clark, a TDCJ spokesman said there was a change in the way the incidents were reported in 2012, which could account for some of the increased incident reporting. But he could not say how much that would have changed the numbers.

Lance Lowry, president of the Texas correctional employees union, said that most of the time force is used in confrontational situations where inmates refuse to cooperate with orders.

With many veteran correctional officers retiring, the state prison system is relying more on rookie staff members, including some who may lack the skills to “de-escalate” a confrontation before deciding to use some sort of force, Lowry said.
The UT LBJ School's Michele Deitch expressed concern over the use of chemical agents like pepper spray on inmates “where they won’t comply with an order,” but “There’s no particular indication that there’s an immediate danger of any kind.”

As a followup, it'd be interesting to know how many of those use-of-force and pepper spray incidents involved mentally ill inmates, an issue that arose in California prisons last fall. The Trib's Brandi Grissom reported last fall that use-of-force rates were highest at TDCJ's psychiatric facilities and units housing large numbers of mentally ill inmates. One also wonders how many disciplinary actions against employees resulted from these thousands of force incidents, or if TDCJ considered them all justified.

Wednesday, April 02, 2014

Lege committee to review 'Driver Responsibility' surcharge options

The Texas House Homeland Security and Public Safety Committee will meet April 14 to hear invited and public testimony to "Review the Driver Responsibility Program and consider methods for overall improvement of the program," as well as to hear testimony regarding the aftermath of the fertilizer plant explosion in West, TX a year ago.

At a minimum, the Lege would be wise to require the Department of Public Safety to implement another "amnesty" period for the Driver Responsibility surcharge. Their first one was barely publicized and they seem disinclined to sponsor another one, even though they have the authority. Nearly 100,000 drivers were able to regain their licenses thanks to the lat Amnesty program in 2011, but because it was poorly publicized, only 14% of those eligible applied.

DPS offered quite a few additional suggestions for reforming the program at a hearing last year. But for my money, at this point the best way to "improve" the misnamed Driver Responsibility Program would be to abolish it.

See prior, related Grits posts:

Tuesday, April 01, 2014

MSM picks up on Perry's rebellious message to feds on prison rape rules

The MSM has begun to pick up the story, first broken on Grits last week, about Governor Rick Perry defiantly refusing to comply with the federal Prison Rape Elimination Act. The coverage so far has focused mostly on comments by Lance Lowry of the prison guards' union that the main reason the state can't comply with the new standards is understaffing at the Department of Criminal Justice (TDCJ).

TDCJ spokesman Jason Clark told the Texas Tribune that “We are compliant with most of PREA’s standards, except for the cross-gender supervision standard.” Even so, the Trib reported that "From 2009 to 2011, the number of prison sexual victimization allegations rose by more than 10 percent nationwide, according to the Bureau of Justice Statistics. Texas is among states with the highest levels of inmate-on-inmate sexual assault allegations, including four out of the top 21 facilities between 2011 and 2012." (See more background on Texas' record here.)

MSM accounts thus far failed to confront a couple of aspects of Perry's letter that to me don't add up, starting with his claim that governors face "criminal penalties" if they don't certify PREA compliance and the implication that he must certify compliance for county jails and local juvenile detention facilities. Though the Houston Chronicle repeated the claim ("failure to comply with the federal law carries a possible criminal penalty"), there are no criminal penalties in PREA for non-compliant governors. Further, the law says Perry must certify compliance only for units under state government's "operational control" - which doesn't include local agencies - so that's far fewer than the 297 facilities referenced in his letter. There's no formal mechanism for the federal government to enforce PREA standards on locally run facilities. Instead of "criminal penalties," the only enforcement mechanism for states is docking 5% of certain federal block grant funds (in Texas' case, around $1 million total according to this source). Those red herrings deflect the conversation from problems at TDCJ prisons and state jails where state government actually runs the show.

The $64 question is whether failure to follow PREA opens the state up to new litigation. Prison Legal News pointed out that "the standards do not provide a private cause of action for enforcement purposes; i.e., prisoners who are raped or sexually abused due to the failure of corrections agencies to adopt or enforce PREA standards can not file suit against the agency based solely upon that failure (although such claims can still be brought under the 8th or 14th Amendments)." So the only cause of action against non-compliant facilities would be the same sort of Sec.1983 civil rights lawsuits to which prisons and jails have already been subject for decades.

But it's possible that the existence of an explicit federal law - coupled with Gov. Perry's defiant refusal to comply - could make it easier to prove "deliberate indifference" and clear the path for litigation to move forward that might have been dismissed at earlier stages in the past. By the same token, compliance with PREA standards could immunize state and local facilities against such litigation, even when rape-related civil rights violations occur.

Perry's communiqué represents a marked volteface from TDCJ's past public positions. As recently as late last year TDCJ was saying the new PREA standards would "supplement and strengthen TDCJ's continued effort to prevent, detect and effectively respond to in-prison sex abuse." In 2007, Perry signed legislation requiring TDCJ to create an ombudsman to facilitate PREA compliance. (See the ombudsman's most recent annual report.)

For those reasons, I find Perry's decision to openly thumb his nose at new PREA standards especially curious, given that the agency has been implementing many of them for several years without complaint. Perhaps he just couldn't pass up a chance to take a shot at the Obama Administration (though PREA was actually a George W. Bush-era policy). But it would have been wiser to say nothing at all than to openly proclaim non-compliance and announce that he'd "encourage my fellow governors to follow suit." One wonders whether Attorney General Greg Abbott, who is likely to replace Perry as Governor next January, concurs with that contumacious stance?

Grits has asked under open records for details from a consultant who advised the state on PREA compliance, so perhaps that information will provide more background on why the state would take such a graceless approach on a highly nuanced topic.

RELATED: Raw Story posted an excerpt from a leaked TDCJ training video on the topic of prison rape.

SEE ALSO: A press release from Just Detention International reacting to Perry's announcement which noted that "In a 2013 report, the Bureau of Justice Statistics (BJS) singled out more detention facilities in Texas than in any other state for having high levels of inmate-on-inmate sexual abuse. That report, which was based on a nationwide survey of tens of thousands of inmates, was no aberration; two prior BJS inmate surveys, released in 2010 and 2007, also ranked Texas prisons as having some of the highest rates of sexual victimization in the country." The group's executive director concluded that “Perry’s letter doesn’t only confirm bad leadership, it also provides a sad indication that things probably won’t get better anytime soon in Texas."

MORE: From Texas Public Radio.

Monday, March 31, 2014

Good police-beat reporting from the Texas Observer

Melissa del Bosque at the Texas Observer reported that, "Embattled Hidalgo County Sheriff Guadalupe 'Lupe' Treviño—one of the border’s most powerful law enforcement officials, whose office has been roiled with allegations of corruption—formally announced his resignation Friday." Her article is filled with juicy tidbits so I won't excerpt it, just go read the whole thing.

And speaking of the Observer, congratulations to Emily DePrang for being named a finalist for a prestigious 2014 National Magazine Award for her series last year on Houston PD disciplinary practices related to on-duty shootings and beatings. Noted editor Dave Mann:
The National Magazine Awards, or Ellies, are considered the Pulitzer Prizes of the magazine industry. This is the third Ellie nomination in the Observer’s 60-year history, and the second in two years. The Observer’s Melissa del Bosque was a 2013 finalist in the reporting category.

Emily’s stories—“Crimes Unpunished” and “The Horror Every Day”—published in the July and September issues of the Observer, were the result of eight months of reporting. The stories exposed that the Houston Police Department rarely disciplines officers for misconduct and abuse. Over a six-year period, officers who left crime scenes, falsified reports, mauled suspects and shot unarmed citizens were allowed to keep their jobs and are still patrolling the streets of the nation’s fourth-largest city. Emily found that between 2007 and 2012, Houston cops were involved in 550 shootings of people and animals. The department deemed every one of those 550 shootings justified, including the killing of a wheelchair-bound mentally ill double amputee who was armed with only a ballpoint pen. Emily’s reporting was picked up by CNN, the Houston Chronicle and The Huffington Post, among others.

Union: Texas could meet PREA standards if prisons were properly staffed

Lance Lowry, president of the union representing TDCJ prison guards, issued a press release today suggesting that Gov. Rick Perry's decision that Texas won't comply with the federal Prison Rape Elimination Act (see related Grits coverage) will result in a loss of federal funding and open the state up to potential civil liability. Find the text below the jump:

Sunday, March 30, 2014

Odds and ends: Rules are there for a reason

Here are a few items that deserve Grits readers' attention but haven't made it into their own individual posts:

TDCJ staff breaking bad
A couple of items from The Back Gate website detail disciplinary problems at TDCJ units:
Film this: Fort Worth PD adds body cams
Fort Worth PD has decided to buy 400 additional body cameras for its officers on top of 200 already in the field, reported the Star-Telegram. Though the police association has expressed concern about its members privacy and overreach by management, thus far that hasn't been an issue: "although the videos have led to some additional training for officers, so far none have resulted in formal discipline."

Dallas PD pays $1.1 million for roadside beating
The City of Dallas settled a lawsuit for $1.1 million after dashcam video contradicted officers' account of the arrest of a 62 year old man who was beaten and spent 15 months in the county jail, apparently on trumped up charges. See accounts from WFAA-TV, the Dallas Morning News, and the Dallas Observer.

Read more here:"

Texas sues feds over guidelines re: hiring felons
The Houston Chronicle published an item about the state of Texas' lawsuit, filed late last year, contesting the federal Equal Employment Opportunity Commission's "new guidelines designed to give ex-offenders a chance to be considered for a job," arguing that "The EEOC urges employers to determine in each case whether the disqualification is job-related and a business necessity, and to consider such factors as the nature and gravity of the offense, how much time has passed since the conviction and the time served and the type of job that is being sought." The state of Texas argues:
that it doesn't need to perform the "individualized assessments" the EEOC "purports to require."

It also is asking the court to set aside the EEOC's enforcement guidance and prohibit the agency from giving any job applicants the right to sue the state of Texas over its rules regarding arrest and conviction records.
It also is asking the court to set aside the EEOC's enforcement guidance and prohibit the agency from giving any job applicants the right to sue the state of Texas over its rules regarding arrest and conviction records.

The EEOC didn't return requests for comment for this column. But in its response to the lawsuit, the federal agency noted that its guidance was simply guidance. It wasn't a rule employers had to follow, nor does it have the force of law.

The federal agency also noted that Texas, with its sweeping anti-felon policies, is failing to distinguish between risky job candidates and ones who likely pose little risk.
Former Willacy DA won't snitch
Reported the Valley Morning Star:
Former Willacy County district attorney Juan Angel Guerra was arrested in court on Wednesday and taken directly into custody after refusing to testify before 404th state District Court Judge Elia Cornejo-Lopez.

The arrest stems from Guerra’s continuing refusal to provide an accounting of money he, or an organization called Buena Suerte Social Services Inc., to which he has ties, received from Samuel Longoria. Longoria owned properties at the Cameron County and Hidalgo County line known as the “blue buildings,” the sites of lucrative gaming operations. ...
Assistant DA Matthew Kendall has maintained that Guerra is Buena Suerte and that the organization was nothing more than a shell corporation.
Former state rep faces forfeiture in bribery scandal
From the Valley Morning Star: "The U.S. Attorney’s Office has given notice that it intends to dispose of a quarter-million dollars forfeited by ex-state representative Jim Solis, for his role in the racketeering and bribery schemes." Solis is currently serving a 3 years 11 month federal prison term.

Money laundering blame game
In this New York Times story, US officials blame Mexico for failing to prosecute money laundering, but the truth is banks and businesses on the American side are also culpable.

Friday, March 28, 2014

Perry: Texas won't comply with federal Prison Rape Elimination Act

The federal Prison Rape Elimination Act was signed into law by President George W. Bush in 2003, but the rules governing its implementation were not completed until June 2012 and standards governing audits of state facilities weren't finalized until August 2013. Governor Rick Perry today sent a letter to US Attorney General Eric Holder, forwarded by a confidant to your correspondent, declaring Texas would not comply. Here's a notable excerpt:
Because PREA standards prohibit most cross-gender viewing, TDCJ would be compelled to deny female officers job assignments and promotion opportunities, simply based on their gender. A consultant referred to TDCJ by the PREA Resource Center absurdly suggested that TDCJ solve this proglem by removing security camersas and obstructing lines of sight. That is ridiculous. Doing so would not only be a security risk for both prisoners and staff but also increase the likelihood of assaults taking place, defeating the intent of the law.

PREA also infringes on Texas' right to establish the state's own age of criminal responsibility. That age in Texas is 17. PREA, unlike the JJDP Act, which recognizes each state's age of full criminal responsibility, makes no allowances for differences among the states. PREA sight and sound separation standards would require Texas to separate 17-year old adult inmates from 18-year old adult inmates at substantial cost with no discernible benefit to the state or its inmates.

PREA standards also set specific staffing ratios for juvenile detention facilities different from the state's current rate. While this ratio may be ideal in some facilities, the decision of what constitutes appropriate staffing ratios should be left to each state and to those professionals with operational knowledge. One of Texas' 254 counties has said that compliance with this standard would require them to hire 30 more detention officers. That is an unacceptable cost for a small county with a limited budget. ...

PREA standards also mandate that by May 15, 2014, the governor of each state must certify, under threat of criminal penalties, that all facilities under the governor's control are compliant with PREA standards. Texas has approximately 297 facilities subject to PREA, including 164 lock-up facilities. PREA requires one-third of these facilities to be audited each year, yet no audit tool for lock-ups has even been developed. There is no way that I will certify compliance for facilities that have not even been audited. The compliance and certification deadline is further complicated by the fact that PREA requires states to conduct audits by PREA-certified auditors. There are only about 100 PREA-certified auditors nationwide, and the first of those were not certified until late 2013.

Even if the manifest problems with PREA standards I laid out above did not exist, I cannot and will not certify as true those things for which I do not have the facts.

Washington has taken an opportunity to help address a problem in our prisons and jails, but instead created a counterproductive and unnecessarily cumbersome and costly regulatory mess for the states.

I encourage the administration to change these standards and do so soon. Absent standards that acknowledge the operational realities in our prisons and jails, I will not sign your form and I will encourage my fellow governors to follow suit. In the meantime, Texas will continue the programs it has already implemented to reduce prison rapes.
Fascinating. Perry's letter portrayed this as an Obama Administration initiative but really it's his Texas gubernatorial predecessor-turned-president whose policy he's snubbing.

A quick Google search finds little media coverage or other significant detail on how PREA is being implemented in other states, but here's an FAQ from the feds on PREA implementation. It's not clear to me how Perry gets to 297 facilities under his "operational control" given that TDCJ only operates 111 facilities and there are five secure, state-run juvenile lockups. Here's the definition from the FAQ of what facilities are under the Governor's "operational control":
The National PREA Standards state that “The Governor’s certification [of full compliance with the PREA standards] shall apply to all facilities in the State under the operational control of the State’s executive branch, including facilities operated by private entities on behalf of the State’s executive branch.”  28 C.F.R. § 115.501(b).   A “facility” is defined as “a place, institution, building (or part thereof), set of buildings, structure, or an area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.”  Id. at § 115.5.  Some standards apply specifically at the facility level, while others apply at the agency level.

The definition of facility includes local detention and correctional facilities as well as State correctional facilities; however, not all facilities within a State are subject to the Governor’s certification. The Governor’s certification does not encompass those facilities outside the operational control of the governor; namely, those facilities that are under the operational control of counties, cities, or other municipalities, or privately-operated facilities not operated on behalf of the State’s executive branch.

The term “operational control” is not defined in the National PREA Standards.  The determination of whether a facility is under the operational control of the executive branch is left to a governor’s discretion, subject to the following guidance.

Generally, there are several factors that may be taken into consideration in determining whether a facility is under the “operational control” of the executive branch:
  • Does the executive branch have the ability to mandate PREA compliance without judicial intervention? 
  • Is the State a unified correctional system?
  • Does the State agency contract with a facility to confine inmates/residents on behalf of the State agency, other than inmates being temporarily held for transfer to, or release from, a State facility?
The above list is not exhaustive but it covers the majority of the situations that Governors may face in determining whether a facility or contractual arrangement is subject to the Governor’s certification. 
By that definition, it doesn't sound to me like Perry must certify that county-run juvenile detention facilities or local jails comply with PREA standards. Texas doesn't have a "unified correctional system" under gubernatorial control that extends to those local facilities. Further, PREA standards specifically do not "apply to adult psychiatric forensic mental health care facilities or hospitals operated by non-correctional agencies," though they "do apply to residential community confinement facilities such as halfway houses operated by community corrections agencies." Even so, I'm still not sure how that gets you to 297.

According to the FAQ, the certification Perry is talking about would affirm that "not less than five percent of its DOJ funding for prison purposes shall be used only for the purpose of enabling the state to adopt and achieve full compliance with the PREA Standards." Perry, though, appears to be saying he will not make such a commitment even though, as the program ramps up, the rule specifically provides that the Governor can make the required assurances "even if the agency has not pursued or completed audits."

For the life of me, I can't tell to what the letter is referring when Perry says governors must submit certification under "threat of criminal penalties." Judging from the FAQ, the penalty for noncompliance appears to be a 5% cut in three federal grant funds administered by the Governor's office, specifically "(1) the Bureau of Justice Assistance’s Edward Byrne Memorial Justice Assistance Grant Formula Program, and (2) the Office of Juvenile Justice and Delinquency Prevention’s Juvenile Justice and Delinquency Prevention Act Formula Grant Program." The third block grant to be cut is "administered by the Office on Violence Against Women: the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program."

Finally, the new PREA standards provide another argument for the state to increase the age of criminal responsibility from 17 to 18, as the House Criminal Jurisprudence Committee was discussing earlier this week. Again, from the FAQ:
The Youthful Inmate standard requiring separation of those under age 18 from those over 18 is “setting specific,” applicable only in prisons, jails, and lockups. Even where state law provides for automatic prosecution in adult court of individuals at age 16 (e.g., NC, NY) and age 17 (e.g., GA, NH, IL, LA, MD, MA, MI, SC, TX, WI) when those persons are detained or confined in an adult prison, jail, or lockup, such individuals must be sight and sound separated from those over the age of 18.
This is another example of how Texas' outlier status regarding the age of criminal culpability creates ongoing conflicts with federal law.

Notably, however, the "sight and sound" standards about which the governor complained do not apply to juvenile facilities: "The PREA standards do not provide for any sight and sound separation of residents in juvenile facilities either because of age or court of conviction. Neither the standard on youthful inmates (115.14) nor the standard for youthful detainees (115.114) is applicable in juvenile facilities."

It'll be interesting to see how all this plays out in the coming months. Since Perry is leaving office after the end of the year, he really has no dog in the fight when it comes to foregoing federal grant money since he won't be around anymore to preside over its distribution.

Grits has filed an open records request for any report and/or correspondence from the consultant referenced in the Governor's letter, so perhaps that will reveal more about the supposed barriers to Texas' compliance with the federal Prison Rape Elimination Act.

CLARIFICATION: The DOJ has issued standards for county jails and local juvenile lockups but governors are only required to issue certifications for facilities under "operational control" of the state's executive branch, which in Texas does not include either category. Language in the post was adjusted to make that clear. MORE: See a detailed analysis of PREA implementation, including the lack of meaningful enforcement mechanisms, from Prison Legal News.