Sunday, December 21, 2014

TDCJ deaths in custody skyrocketed after 2011 healthcare cuts

The press and advocates focused on the death penalty and even police shootings are missing the big picture about deaths of Texans at the hands of the state.

Regular readers know this blog seldom considers death-penalty topics unless a case intersects with other issues I routinely cover like innocence, forensic errors or prosecutor misconduct. By contrast, to read most MSM sources, both opinion and news, you'd think that what happens in Texas' execution chamber is the single most important life-or-death issue facing the criminal-justice system. Taking a step back from that myopic view, however, since 2005, roughly one person per day died in custody in Texas, Grits had earlier reported. Only a tiny fraction of those died from lethal injection.

Now that the year is winding down, it can be said that the state of Texas will have executed ten people in 2014, which is the lowest number since 1996, according to the Dallas Observer's Unfair Park blog. To put that number in context, 592 souls overall, including those ten who were executed, perished so far in 2014 while in custody of Texas law enforcement, either at the hands of police, in local county jails or, most frequently (400 of them), in custody of the Texas Department of Criminal Justice.  Here are the 2014 figures (see the full excel file for all agencies) so far for some of the larger local departments.
2014 Deaths in Custody, Various Departments
Austin PD: 3
Travis Sheriff: 3
Dallas PD: 13
Dallas Sheriff: 8
San Antonio PD: 19
Bexar Sheriff: 8
Houston PD: 18
Harris Sheriff: 17
Fort Worth PD: 3
Tarrant Sheriff: 5
El Paso PD: 3
El Paso Sheriff: 6
The Attorney General does not place more detailed death-in-custody reports online, a policy contrary to transparency which, IMO, the new AG should immediately change in light of local, state and national calls for police accountability. So without a lot of extra work filing open records requests, these topline data are what's available.

If one were to Google the names of the ten people executed this year you'd find numerous press accounts on each of them, , in-depth habeas corpus pleadings and carefully considered findings of fact by various trial courts and (less carefully considered) vetting by Texas appellate courts, plus review through a federal appellate process which has not been shy about bench slapping Texas courts when their bloodthirsty predilections exceed their constitutional authority as interpreted by the US Supreme Court.

By contrast, most of the other 582 on the AG's 2014 death-in-custody list died relatively anonymously, perhaps with a brief notice in a local paper, perhaps not. But for the most part, nobody marched in the streets like they did after recent incidents in Ferguson and Staten Island. The press and the public treated most deaths as routine inevitabilities. Many of the episodes at PDs are shootings or other killings in the field while taking suspects into custody; Sheriffs' numbers are more likely to represent deaths in the county jail.

But the truly surprising data come from TDCJ, where the number of deaths in custody has skyrocketed since the Legislature dramatically cut health care staff in 2011 and attempted to shift health care costs to inmate families. Some at TDCJ were old men who died at the end of long sentences. But that doesn't explain the remarkable, recent uptick. Following the 2011 budget cuts, TDCJ witnessed more than a three-fold rise in in-custody deaths:

Deaths in Custody at TDCJ

2014: 400*
2013: 441
2012: 147
2011: 125
2010: 116
2009: 142
2008: 141
2007: 145

*Year to date

Grits can't prove it, yet, but I personally believe the increase in deaths at TDCJ resulted from inferior healthcare due to understaffing from the 2011 budget and staffing cuts. TDCJ has told the Legislature it needs a $175 million budget boost for health care in the next biennium just to meet "minimum standards," a situation exacerbated by the state's decision not to expand Medicaid under Obamacare, which would have brought up to an additional $240 million to TDCJ from the feds for prisoner hospital care.

Will anyone march in the streets because of these hundreds of likely unnecessary prisoner deaths the way they did over Michael Brown or Eric Garner? Apparently not. Will east-coast donors obsessed with the death penalty look at these data and shift their spending toward reforming the parts of the justice system which are killing the most people? Don't hold your breath. Not all deaths at the hands of the state, it would seem, are created equal.

This blog takes a utilitarian view. There are perhaps a dozen or more advocacy groups and nonprofits, big and small, and hundreds of activists statewide devoted to death-penalty abolition, a cause with which I don't even 100% agree with on first principles. (I happen to believe there are people in the world who need killing.) But scarce few of those principled folk seem to care about the other 98+% of deaths in custody, especially those in prison. If you believe the state shouldn't kill, it hardly makes a difference to the deceased whether it kills via the executioner's poison, a policeman's bullet, or medical neglect by the prison system. I'm always amazed to hear people chanting "the whole world is watching" at an abolitionist protest - which again, deals with ten or so executions per year - while those same individuals and all the press covering their antics largely ignore the hundreds of bodies racking up elsewhere in the system.

The data on in-custody deaths at TDCJ are dramatic enough to warrant not just review by the Texas Legislature when it convenes in 2015, but maybe even the feds. Ideally, they wouldn't wait until there are crowds of chanting protesters in the street. There needs to be an independent review of why deaths in TDCJ tripled so rapidly and, if I'm right the budget cuts are to blame, the state will have set itself up for a doozy of a Section 1983 civil rights lawsuit.

DATA NOTE: 2014 data are a running total and were accurate at time of posting; a couple more deaths have already been added to the list today.

Thursday, December 18, 2014

Pondering the Ghosts of Christmas Pardons Past, Present and Future

Will Texas Gov. Rick Perry issue one last round of Christmas-time pardons on his way out the door?

The future of executive clemency looks bleak.
Image from A Christmas Carol, 1951.
Usually he'd do it this week. (The sign of a clemency geek: I've been keeping the governor's web page up in a browser tab and periodically refreshing it. At least I'm up to date on the governor's views on the Australian hostage crisis and Chanukah.) Grits notoriously is not a great fan of the Christmas pardon phenomenon, but for the most part, with a few notable exceptions (especially early in his governorship), Perry has restricted routine exercises of clemency to a minimalist, annual pre-Christmas ritual.

One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.

Grits hopes we see one more clemency announcement from Rick Perry, who can afford to be generous on his way out the door. But even more, I hope Greg Abbott ends this annual charade and integrates the clemency function more deeply and thoughtfully into the day-to-day duties of the state executive. With a few, notable exceptions (the Tulia cases, DNA exonerees, death-sentence commutations to comply with US Supreme Court orders) Rick Perry either ignored clemency or treated it as a political prop. Most years, an annual announcement during the holiday season of 10-20 lucky winners of the clemency lottery was the most one could hope for.

But clemency is one of the core duties of a state executive, in Texas filtered through the governor's appointees at the Board of Pardons and Paroles. It shouldn't just be a once-a-year thing and if two-thirds of the BPPs recommendations are to be rejected, reasons ought to be given.

There are many good explanations for the rise of mass incarceration in America over the last four decades, but one contributing factor you don't hear discussed very often is that mass imprisonment coincided with a precipitous decline both in the exercise of executive clemency and judges' habeas corpus power, both of which became more timid, stilted and stymied as they fell under sustained political attack, especially surrounding the death penalty. But these are the two main remedies for overincarceration envisioned by constitutional framers. So if the executive and judicial branches are incapable of reining in mass imprisonment, allowing the tools granted them for that purpose to atrophy from disuse, that leaves the legislative branch which largely created the problem in the first place. In Texas, the Lege is slowly reconsidering its predilection for expensive, lock-em-up solutions to every social problem. But that process would go faster if the governor and the courts exercised leadership on clemency using the means already at their disposal.

WANT MORE ON PARDONS? For current news on Christmas-time pardons from other states and from the Pardon-Grinch-in-Chief President Obama, don't forget to check the blog Pardon Power by the inestimable P.S. Ruckman, who tracks clemency issues nationwide and around the globe.

Antebellum Texas judges enjoyed sweeping habeas corpus authority

Grits recently opined that, over the long arc of history, nearly all legislative involvement in habeas corpus has been to restrict judicial authority, with the creation of Texas' new junk science writ in 2013 cutting against the grain. To see how much habeas corpus authority has been restricted over the years in Texas, I spent a little time looking through the 1856 Texas Code of Criminal Procedure (pdf), which I found online at the Texas Legislative Reference Library. Compare it with Chapter 11 of today's Code of Criminal Procedure which covers habeas corpus and one quickly realizes that Texas judges' authority in this area has been radically reduced since those antebellum years following statehood.

Today, Texas trial judges are mere fact finders for the Court of Criminal Appeals in the habeas corpus process.  The CCA calls all the shots and their actions are highly limited by statute, mainly to post-conviction reviews, with extremely limited authority to grant relief and a process largely slanted against applicants who are overwhelmingly denied. By contrast, the 1856 Code of Criminal Procedure created by Texas' founding fathers gave Supreme Court judges (criminal wasn't split off until after the Civil War) as well as district judges far more sweeping habeas authority than they enjoy today. Here are some excerpts which will give you a sense:
High court authority
Article 58, 1856 Texas Code of Criminal Procedure
The Supreme Court, or either of the Judges thereof, has original jurisdiction to enquire into the cause of the detention of persons imprisoned or detained in custody, and for this purpose may issue the writ of habeas corpus, and upon the return thereof may remand such person to custody, admit to bail, or discharge the person imprisoned or detained, as the law and the nature of the case may require

District Judges could issue writ
Article 60, 1856 Texas Code of Criminal Procedure
Each District Judge has power to issue the writ of habeas corpus, and have brought before him any person imprisoned or otherwise illegally detained in custody, in any county, whether within or out of his district, and make such order on the return of the writ as the law and the facts of the case may require, whether the person detained has been indicted or not, under the restrictions herein prescribed.

Construed in favor of defendant
Article 121, 1856 Texas Code of Criminal Procedure
Every provision relating to the writ of Habeas Corpus shall be most favorably construed in order to give effect to the remedy, and to protect the rights of the person seeking relief under it.

Duty to grant
Article 122, 1856 Texas Code of Criminal Procedure
The Supreme Court, or either of the Judges of the District Courts, or either of the Judges, have power to issue the writ of Habeas Corpus and it is their duty, upon proper application, to grant the writ under the rules herein prescribed.

Judges could initiate process
Article 132, 1856 Texas Code of Criminal Procedure
A Judge of the District Court who has knowledge that any person is illegally confined or restrained in his liberty within his district, may issue the writ of Habeas Corpus without any application being made for same.
The authors of Texas' 1856 Code of Criminal Procedure clearly envisioned activist judges operating independently via habeas corpus to provide checks and balances to inevitable state overreach, in the courageous tradition of Texas Supreme Court Chief Justice George F. Moore. By comparison, today judges' role in habeas review is largely technocratic save for a small minority of cases at the CCA level. Texas judges in 1856 enjoyed sweeping powers to review and end unjust incarceration which appear breathtaking by comparison with today's puny judicial analogues.

See related Grits posts on Texas habeas history:

Wednesday, December 17, 2014

Ho hum reaction to civil-pot-penalty bill a positive sign

Reactions are still rolling in to Rep. Joe Moody's proposal to reduce low-level marijuana possession to a civil offense with a $100 fine. The Fort Worth Star-Telegram chimed in with a favorable editorial (12/16), opining that "The cost of policing, prosecuting and punishing violators of Texas’ still stringent marijuana laws is enormous — in dollars, the toll on individuals and the burden on the overall criminal justice system."

Then, (12/16) offered one of the first stories featuring local reactions as opposed to just covering the press conference. Of particular note were the grudgingly favorable comments from the Cameron County DA:
"To a certain extent, I agree with the proposal, but let me first make it perfectly clear that myself and this office, does not endorse the use of marijuana," Luis Saenz, the Cameron County District Attorney, said.
If the new bill is approved, it would remove criminal penalties for possession of small amounts of marijuana.
Saenz said the county has limited resources when young offenders go to jail for offense.
It's costing them thousands of dollars, and he said Moody's proposal is nothing new.
"In my office when they have a first time offender with less than a third of marijuana, typically we don't file the case," Saenz said.
Grits predicts this will become a recurring theme: Law enforcement officials will oppose Moody's bill less vehemently than one might expect - and in some, surprising instances, support it - because, in practice, they don't have resources to pursue these cases, anyway. Even Smith County Sheriff Larry Smith, who dislikes Moody's bill, says his agency does "not vehemently enforce the marijuana laws." His deputies don't "go out a looking for that," he explained, "but if we run across it, we get it."

In another outside-the-press-conference reaction, Angelica Leicht at the Houston Press suggested that Moody doesn't go far enough, declaring that "Marijuana laws in Texas are pretty darn ridiculous in their current state, and perhaps it's time for a mass overhaul." She took aim in particular at "Three ridiculous pot laws in Texas" and, though attorneys may nitpick at her characterizations, the reaction does show that some Texans will find Moody's medicine to be weak tea, particularly after seeing what voters accomplished in Colorado, Washington, Alaska, Oregon and (tentatively) D.C..

Others, of course, will inevitably weep and wail that, if Moody's bill passes, babies and old people will die, pot smoking hippies will entice schoolchildren into lives of vice, and many other terrible and highly improbable things will definitely, absolutely, immediately happen that should make us all very, very afraid. But judging from the tepid, initial response to Moody's bill, and the lack of vehement opposition to related bills in committee in years past, perhaps the reaction to Moody's civil-offense idea may be less strident than one might have guessed.

On the limits of citations and arrests for combating panhandling and homelessness in San Antonio

An opinion column by John Brodesky in the Express-News (Dec. 12) lamented the limits of citations and arrests for dealing with panhandling and homelessness in downtown San Antonio. The article opened:
In its never-ending war on panhandling, the San Antonio Police Department has been deploying vice detectives to issue citations for aggressive solicitation.

All through the summer, vice detectives arrested people such as Rafael Alvarado for begging for money and wandering into traffic at busy intersections.

If the goal was to waste lots of time and energy, the tickets were a slam dunk. An analysis of city documents reveals an aggressive campaign against panhandlers — likened to a quota by one expert — that has produced plenty of citations and little else.

Most everyone agrees citing panhandlers is a waste of time. But public pressure to do something, the short-term benefit of moving people out of a problematic area and a lack of other options keep the citations flowing. Meanwhile, a pilot program to steer panhandlers toward treatment has languished due to a lack of funding.

If only we were as aggressive with preventive strategies.
Brodesky quoted a city memo from September declaring that “SAPD has initiated a citywide zero tolerance program on panhandlers and conducts weekly round-ups with arrests.” Nobody thinks that it's working but cops and politicians want to be seen as doing something, however pointless, and pols would rather pay for show than substance.

To Brodesky, "Municipal Court for a panhandler is like circling through a revolving door. The ones taken there loop through it without ever paying their fines because they are indigent, instead getting credit for time served. Factor in transporting and holding panhandlers, or the work hours put into citing them, and it’s downright costly." Thousands of these "quality of life" citations against repeat offenders were dismissed by the SA municipal court in 2014, he pointed out, as "defective" and pointless. His column concluded:
The department’s “mental health squad,” a six-person unit that responds to calls where a person might have mental illness, has saved taxpayers millions by placing offenders of minor offenses in treatment rather than jail.
In fact, [Chief William] McManus, Judge [John] Bull and a number of other judges and stakeholders have considered a similar pilot program for 10-15 panhandlers, but it hasn’t had much success, if any. The issue? Well, it’s ironic, really, but there is no money for it.

“Who is going to pay for the thing, or where are the beds going to be?” Bull asked.

Maybe then, our priority shouldn’t be more panhandling tickets, but funding this pilot program.
Really, it couldn’t be any less effective or wasteful.

Liberating turn in coastal bend saga: Hannah Overton free on bail

A trial judge ordered Hannah Overton released on bail yesterday after spending five years in prison for allegedly poisoning her foster son with salt. The Texas Court of Criminal Appeals in September overturned her conviction but a bail hearing was ordered because the DA has said he will seek a new trial. Members of her church congregation covered a $50,000 bond. See coverage from:
The DA may want a second bite at the apple but thanks to developments described well in the Texas Monthly story (a key state witness switched sides), it seems increasingly unlikely that will happen.

In many ways, Overton's case was the turning point when the Court of Criminal Appeals began to openly acknowledge the weaknesses in the law that spurred the Legislature to create Texas' new junk science writ and the CCA to interpret it so that it affects bad scientists, not just changing science. In a statement accompany an order for an evidentiary hearing in Overton's case in 2012, Judge Cathy Cochran wrote:
This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today's science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow's science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today's public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result--an accurate result that will stand the test of time and changes in scientific knowledge.

Id. The problem in this case, as in Robbins, is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available 
That was precisely the argument Cochran and Co. finally won 5-4 just before Thanksgiving in Ex Parte Robbins II. Ironically, though Overton's case helped spur the Lege to create the new junk science writ, she did not end up benefiting from it. In the end, her habeas writ rested on two grounds: Ineffective assistance of counsel and exculpatory evidence allegedly withheld by prosecutors. The CCA in September granted the IAC claim without ruling on prosecutor misconduct allegations, a result which eventually led to Overton's bail hearing and release this week.

Tuesday, December 16, 2014

Resources for tracking activity, bills during the 84th Texas Legislature

I've done this before, but as we approach Texas' 84th legislative session in January, Grits thought it prudent to iterate a few handy sources for those following the action from outside the pink dome.

Capitol website: Search by bill number or perform word searches. (Be sure it's set to the appropriate session.) Or review all current Texas statutes online. Especially useful for bill research are the reports sections, both the general, pre-defined reports and narrower ones you specify. The capitol site also provides a password-protected, personalized bill tracking service and bill/meeting alerts. These are the equal of professional services that cost thousands of dollars and have improved every session. For example, this session for the first time, pdf versions of bills on the capitol website include hyperlinks to the underlying statute they're changing. (The Legislative Reference Library has a tool that previously assisted with that and will still be needed for paper versions.) The only things the paid services have that the capitol site doesn't are blow-by-blow updates from the floor, especially during the amendment process, and more detailed minutes/notes from committee meetings that give you a time-stamp for witnesses' testimony so you can go back and find it amidst the countless hours of video on the capitol website. Otherwise, for all but full-time professional lobbyists, these free services should more than meet your needs. The House and Senate websites are operated independently and contain unique information about individual members and committee activity in those chambers including streaming and archived video of committee hearings.

Legislative Reference Library: The Legislative Reference Library on the second floor of the capitol is an underutilized state gem that few people outside legislative staff, the better lobbyists, and a few appellate attorneys truly appreciate. The staff is friendly, helpful and patient. Great for researching legislative history and intent - its main function - but their whole collection uniquely focuses on Texas state government and I've learned a lot over the years just combing the stacks and reading. Here's a brief list of their specialized collections. Their website is full of great current and historical information and Texas-specific tools and databases. They've also got a nice (if regrettably blog-free) statewide list of Texas media outlets. And perhaps most usefully on a day to day basis, if you've ever been in a legislator's office and seen a stapled, legal-sized compendium of daily news clippings floating around staffers' desks, these are the folks who compile them. Happily, these days they also put the daily links online.

Texas Tribune directory: Most folks are aware of the Texas Tribune's nonprofit news stories, but their state official directory lists contact info and staffers for every member. One of the best, comprehensive, free sources of that information and it seems to stay pretty up to date.

Legislative Budget Board: Provides access to agencies' appropriations requests and tracks the progress of House and Senate budget bills. On the criminal justice front, they also track adult and juvenile prison population trends and numerous other quantifiable policy measures.

If you've got those tools, a telephone, email, and a Google News feed, and if you don't mind spending hours watching hearings online, you've got access to most of the methods available to professional journalists and lobbyists who track this stuff for a living.

Moody proposes civil penalty, $100 fine for less than 1 oz of pot

Texas state Rep. Joe Moody yesterday held a press conference to promote his new bill HB 507 which would change the penalty for possession of less than an ounce of marijuana to a civil, rather than a criminal offense, with a $100 fine. As these things go, the presser went well. Rep. Moody was sharp and focused and Heather Fazio of the Marijuana Policy Project did a good job as emcee. The event was packed with supporters and had decent coverage; I counted six TV cameras, though several print outlets were notably absent. Your correspondent attended on behalf of the Texas Criminal Justice Coalition. Here's a roundup of MSM coverage I saw this morning:
Grits thinks the bill has a decent chance. Polling won't scare legislators off this time, and the economics of the proposal are favorable both to counties and law enforcement agencies. Plus, there's already an appetite for reducing penalties. A couple of other reps - Dutton and Wu - have filed bills reducing possession of small amounts of pot (one ounce and .35 ounces, respectively) to a Class C misdemeanor. And last session, the House Criminal Jurisprudence Committee voted out a bill to reduce the offense level for offenders under 21 to a Class C. Indeed, going back to 2005, the same committee, then under leadership of Chairman Terry Keel, unanimously supported a bill to reduce low-level pot possession to a Class C; then-Speaker Tom Craddick wouldn't let it to the floor. Then as now, though, one can count to a majority among House members if leadership would ever let them vote on the issue.

Rep. Moody's innovation in HB 507 is to create a civil penalty instead of merely dropping the offense to a Class C. The bill specifically says the civil fine will not be considered a criminal conviction and police couldn't arrest people solely for possessing less than an ounce of pot. (See the text.) As a former misdemeanor prosecutor from El Paso, Moody is well-positioned to make the case for this legislation.

There are several reasons to go the civil route. Criminal drug convictions, even a ticket, carry collateral consequences like losing access to student financial aide or other benefits that a civil penalty would not. Plus, advocates can claim the bill "decriminalizes" pot, which changing this to a Class C keeps the offense in the criminal realm. Senior District Judge John Delaney from Bryan spoke at the presser and cited polling, repeated in a couple of the above-linked stories, showing 61 percent support among Texans asked a polling question which nearly exactly described Rep. Moody's bill (civil penalty, $100 fine).

The flip side is that Texas law criminalizes everything legislators don't like, even stuff that in other states is covered by civil regulations like business practices (which is why we have eleven different felonies in Texas you can commit with an oyster). So the bill cuts against the state's routine practices and may face nonpayment problems when JP courts begin to adjudicate cases. The best analogy may be red-light cameras, tickets from which are among the only comparable "civil" offenses in Texas and have poorer-than-touted payment rates. OTOH, other states have managed to crack this nut and use civil penalties for lesser offenses, so it's not as though it can't be done. And avoiding collateral consequences for a drug conviction is a big deal.

Good luck, Rep. Moody. Here's hoping you've brought the right bill at the right political moment.

Monday, December 15, 2014

I Can't Breathe, South Texas style, and other stories

Here's a browser clearing compendium of items  that merit Grits readers' attention even though I haven't had time to adumbrate them fully.

Wrong solution to culturally inept 'surge' participants
Is it true, as Valley legislators allege, that "Too many of the Department of Public Safety troopers assigned to the South Texas border region do not understand the local Hispanic culture and are unable to speak Spanish"? Perhaps. I'll even go with, "Probably." To me, though, the solution is to scale back the politicized, pointless, metric-free, "surge," not to build a damn training center down there to make it permanent! 

Lawsuit alleges sexual assault by employee of county jail contractor
A lawsuit by a former inmate alleges she was sexually assaulted by an employee of Community Education Centers, a private prison firm out of New Jersey that operates McLennan County's local jail, reported the Waco Tribune Herald. Jail privatization has already been a financial albatross for the county, but, if true, these allegations and the process of proving them in court might turn public opinion against the county's jail contracts more viscerally. 

I Can't Breathe, South Texas style
Eighteen students and staff members at a Raymondville ISD middle school were given medical treatment after they were exposed to tear gas during a training exercise at the neighboring Willacy County State Jail, reported KWTX TV.

New Tarrant DA will create Conviction Integrity Unit
The new Tarrant County DA Sharen Wilson will create a Conviction Integrity Unit. The fellow hired to run it, Larry Moore, said correctly that the lower number of exonerations in Tarrant may be because they “didn’t have the pattern of abuse you found in Dallas," as local officials have insisted. "But frankly, all the evidence was destroyed here, and Dallas kept it,” he added, which regular Grits readers know more accurately gets to the heart of the matter.

Priced to go
Outgoing Texas Court of Criminal Appeals Judge Tom Price spoke to the Austin Statesman's Chuck Lindell about his last-minute declaration that he opposes the death penalty after sending hundreds of men and women to death. (Price's views have migrated greatly from those of the judge who was warned by the State Commission on Judicial Conduct in 2001 for a campaign message touting that he had "no sympathy" for the criminal.) Regrettably, Lindell's conversation with the judge did not stray from Price's new-found death penalty views to plumb other topics like ideological splits on the court, relationships among judges following the Charles Dean Hood debacle, or his reasons for switching sides in Ex Parte Robbins I and II. I understand Texas Monthly will publish an interview with outgoing CCA Judge Cathy Cochran early next year, though don't expect her to break decorum and speak about the insider baseball stuff.

Reddy: Pretrial detention of low-risk offenders 'counterproductive for public safety'
Vikrant Reddy of the Texas Public Policy Foundation authored an editorial in the Houston Chronicle explaining how "pretrial incarceration of those who do not pose a high risk of committing a serious crime is counterproductive for public safety." He argues for "developing pretrial risk assessment instruments that can be used to make sound determinations about who needs to be in jail and who does not."

Read more here:

Mass imprisonment and public health
I'd missed a NY Times editorial from last month regarding harms to public health from mass incarceration. Here's a notable excerpt from its opening:
When public health authorities talk about an epidemic, they are referring to a disease that can spread rapidly throughout a population, like the flu or tuberculosis.

But researchers are increasingly finding the term useful in understanding another destructive, and distinctly American, phenomenon — mass incarceration. This four-decade binge poses one of the greatest public health challenges of modern times, concludes a new report released last week by the Vera Institute of Justice.

For many obvious reasons, people in prison are among the unhealthiest members of society. Most come from impoverished communities where chronic and infectious diseases, drug abuse and other physical and mental stressors are present at much higher rates than in the general population. Health care in those communities also tends to be poor or nonexistent.

The experience of being locked up — which often involves dangerous overcrowding and inconsistent or inadequate health care — exacerbates these problems, or creates new ones. Worse, the criminal justice system has to absorb more of the mentally ill and the addicted. The collapse of institutional psychiatric care and the surge of punitive drug laws have sent millions of people to prison, where they rarely if ever get the care they need. Severe mental illness is two to four times as common in prison as on the outside, while more than two-thirds of inmates have a substance abuse problem, compared with about 9 percent of the general public.

Common prison-management tactics can also turn even relatively healthy inmates against themselves. Studies have found that people held in solitary confinement are up to seven times more likely than other inmates to harm themselves or attempt suicide.

The report also highlights the “contagious” health effects of incarceration on the already unstable communities most of the 700,000 inmates released each year will return to. When swaths of young, mostly minority men are put behind bars, families are ripped apart, children grow up fatherless, and poverty and homelessness increase. Today 2.7 million children have a parent in prison, which increases their own risk of incarceration down the road.

If this epidemic is going to be stopped, the report finds, public health and criminal justice systems must communicate effectively with one another.

Sunday, December 14, 2014

How to deliver local property-tax relief: Cut county jail, court costs for pot, DWLI cases

Texas' statewide leadership has been speaking broadly of property-tax relief throughout the campaign season. But now that elections are over and it's time for governing and budget writing, what exactly does that mean?  Reported Peggy Fikac at the SA Express-News (Dec. 6):
The devil, as always, is in the details of a state budget that totals $200 billion in the current two-year fiscal period, including state and federal funds that are largely spoken for before lawmakers convene. Education and health and human services alone take up nearly three-quarters of the total.

“I fully expect there to be some tax relief. The question is, what’s the nature of it?” said Rep. John Otto, a Dayton Republican who serves on the House Appropriations Committee.
Texas has plenty of revenue, in theory, but it also has plenty of needs that can easily sop up the $3.4 billion "extra" allowed for under the new spending cap. With a likely adverse school-finance ruling looming, billions in new state spending are practically if not formally spoken for. So how could the state reduce property taxes for the average Texan?

Here's an idea: Reduce local jail costs - which have been a big driver of tax increases in many Texas counties - by reducing penalty categories for low-level marijuana possession (currently a Class B misdemeanor for possession of two ounces or less) and driving with an invalid license (DWLI, currently a Class B misdemeanor on the second offense). Make those two offenses a Class C or even a civil violation and local governments, especially counties, would save money a) by writing tickets instead of jailing people, b) from the fact that attorneys aren't appointed for the indigent in Class C cases, and c) by keeping more officers, both sheriffs deputies and municipal PDs, out on patrol instead of at the jail arresting pot smokers and drivers who couldn't pay the Driver Responsibility surcharge.

Texas already started down this road, reducing first offense DWLI from a Class B to a Class C in 2007 after the Driver Responsibility surcharge flooded county courts with unlicensed drivers in the first years after its passage. That same year, the Lege passed and Gov. Perry signed legislation to allow local police departments to write tickets instead of make arrests for DWLI, marijuana possession, and several other petty Class B offenses. Only a few agencies took the Lege up on that optional authority, though, and county jails and court dockets remain stuffed with these low-level, non-violent offenders. So reducing penalties for those two Class Bs is a logical next step, as the House County Affairs discussed during an interim committee hearing on the topic earlier this year.

Unlike the feds, Texas' budget must balance. Any claim to cut taxes will prove a mare's nest without a correspondent reduction in spending in a long-term sustainable way. That's why property-tax relief through the school districts can't be certain in light of the surely soon-to-be-coming court verdict on school finance. The state has little wiggle room to spend less on healthcare. And pols have promised to spend more, not less, on transportation and border security. After baseline reductions in 2003 and 2011, there's not a lot of fat left to cut, particularly that would impact property taxes.

By changing state policies to reduce county jail costs, the 84th Legislature could deliver real, not just temporary or superficial, local property-tax relief, cutting costs on a big-ticket item that affects every Texas county. I can't think of a quicker, more certain way the Lege could reduce upward pressure on local property taxes given the practical constraints imposed by law and politics on the state budget.

CCA: Courts mustn't rubber-stamp juveniles' certification as adults

A Texas Court of Criminal Appeals ruling this week established a new, more stringent test for when a juvenile should be certified to be tried as an adult, as Cameron Moon became the first Texas juvenile in a quarter century to successfully challenge his certification as an adult. Henceforth, trial judges must make much more detailed findings related to a defendant's background and fitness as opposed to relying mainly on the seriousness of the crime as a reason to certify. See MSM coverage following Wednesday's ruling from:
On his way out the door, Judge Tom Price authored a majority opinion declaring that, "The transfer of a juvenile offender from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule." Judges Keller and Hervey dissented, holding that "a juvenile transfer order need not specify in detail the facts supporting the order." (Meyers dissented, too, but didn't sign on to Keller's opinion.) John Stride from TDCAA summed up the ruling from a prosecutor's perspective this way:
This decision certainly provides some valuable guidance as to how to properly review the sufficiency of the evidence to support a juvenile transfer order—just probably not the guidance that we were hoping for.  In order to support the certification of a juvenile offender into adult court, you must carefully review the factors set forth Section 54.02(f) of the Penal Code [sic, ed. note, he means the Family Code] and make sure that you have evidence that speaks to each of those factors.  Section 54.02(h) also requires the juvenile trial judge to be specific in his fact findings with regard to those factors.  There is one silver lining in the court’s opinion in this case.  It leaves open the possibility for a new transfer hearing if the evidence is found to be insufficient to support the findings from the first transfer hearing.  If that happens to you, as has happened to the State in this case, read footnote 90 and see if you can comply with that which is set forth there to earn yourself a second transfer hearing.
Bottom line: Texas courts can still certify juveniles as adults but judges, prosecutors and defense counsel all must first do their homework, more closely examining mitigation evidence on the defendant's behalf and making detailed, defendant-specific findings. The court has rejected a rubber-stamp approach which governed the process for nearly 40 years. Probably about time.

Friday, December 12, 2014

What is 'The Real Crisis in Journalism'?

George Packer at The New Yorker this week offered up a comforting etiological myth regarding "The Real Crisis in Journalism," suggesting "It’s true that journalism is in crisis, but the crisis has nothing to do with the work journalists actually do."

In what's either a disingenuous or ahistorical lament, Packer declared that, "It’s easy to feel that the very task of reporting and writing in depth, at length, and in complex detail is somehow to blame for [journalism's] problems." But he reassured his peers with a pat on the head that they need not straightaway put on the hair shirt. You see, "The crisis in journalism is a business crisis, and it’s been going on for twenty years," which of course roughly corresponds to the arrival of the Internet, which led to all those nasty bloggers, podcasters, celebrity Twitter feeds, etc., that allegedly took away the media's mojo.

IMO, though, the Internet only exacerbated journalism's problems, it did not cause them. Last year, this blog offered a contrary view: "Some say the internet is killing the newspaper industry but the truth is it was dying long before most readers had a PC and an email account. (Ask the former employees of the Dallas Times Herald and the Houston Post.) Grits instead believes a major underlying reason for journalism's decline is a preponderance of poor quality, formulaic journalism that fails to meet  popular needs for engaging the democratic process."

The rise of alternative web media accelerated journalism's decline, no doubt. But the deeper crisis predated that development and continues independent of it, such that Christopher Lasch could write (quite accurately) in 1990 that, "Much of the press, in its eagerness to inform the public, has become a conduit for the equivalent of junk mail. Like the Post Office - another institution that once served to extend the sphere of face-to-face-discussion and to create 'committees of correspondence' - it now delivers an abundance of useless, indigestible information that nobody wants most of which ends up as unread waste." How much more true is that today? That's the real crisis in journalism, of which the business crisis is but a symptom.

Lots of Texas departments getting, considering police bodycams

It's been remarkable to see how rapidly the terms of debate have shifted surrounding police body cameras in the wake of the Ferguson and Staten Island protests going national, including here in Texas.

In Houston, the DA's office will spend $2 million to purchase bodycams for Houston PD officers, reported the Houston Chronicle (Dec. 11), which is a good start but less than would be required to equip every patrol officer. "This summer, Houston Police Chief Charles McClelland said he asked City Hall for $8 million to equip 3,500 officers with body cameras over the next three years, but funding for the equipment has not been identified," the paper reported.

Similarly, in Dallas (reported the Morning News last month), DA-elect Susan Hawk announced she would use asset forfeiture funds to buy bodycams for DPD, a move supported by the local policy union. At least some Fort Worth PD officers already use bodycams.

Meanwhile, the San Antonio Express-News reported this week (Dec. 10) that SAPD Chief William McManus recommended to the city council :
that 210 officers on the Park Police and downtown bike patrol units incorporate the devices as a permanent part of their uniforms. Those officers currently do not have any camera system — unlike the majority of the officers, who have vehicles equipped with dashboard cameras.

The recommendation follows a six-month pilot program in which 150 officers were temporarily outfitted with devices.
WOAI radio in San Antonio ran a brief piece saying "Texas cops support body camera idea," and KTRH radio in Houston sported a similar headline, though in my experience that may be too broad a generalization. Here's a good piece on how body cameras work.

It's not just big cities, though. Lakeway, west of Austin, has used bodycams for three years. Georgetown PD in Williamson County adopted them over the summer. Celina PD (straddling Collin and Denton counties) has used them for nine months. In tiny Whitehouse, Texas (well, not as tiny as it used to be - lots of growth in that neck of the woods), the local PD adopted body cameras for its officers about a month ago (KETK-TV, Dec. 9). "It's going to protect the innocent, whether it's the officer or the citizen," said the police chief. The version of the camera used in Whitehouse have no "delete" button so officers can't go back after the fact to erase a recording. "The price runs about $300 dollars for each camera. The Whitehouse police chief says he believes that these cameras are the future of law enforcement."

Tyler Junior College PD has also adopted bodycams for all officers, and the Gatesville city council voted this week to outfit their police officers with them. College Station will outfit bicycle and motorcycle cops with body cameras, as will the Texas A&M University police. In addition, "The Brazos County Sheriff's Office has outfitted its patrol and courthouse deputies with body cameras, and Sheriff Chris Kirk said last month that jail staff is also testing the gear." Further, "Bryan police are also looking into purchasing body cameras for its officers. The department currently has five body cameras being tested by patrol and school resource officers." The Smith County fire marshal even wants firefighters to wear them!

That's a lot of recent progress on this front. Bodycams are not a panacea, but they're no small thing, either.

Thursday, December 11, 2014

How Texas police can better prevent overdose deaths

Yahoo! News reported (Dec. 3) that, "The rate of deaths involving prescription painkillers like Oxycontin and Vicodin more than tripled between 1999 and 2012, according to a new CDC report. The heroin-related death rate is also on the rise, increasing nearly threefold in the same time period."

Which raises the question: Can law enforcement do more to reduce drug overdoses than just make arrests?

In timely coincidence, out last month from the Bureau of Justice Statistics: A "Law Enforcement Naloxone Toolkit" titled "Engaging law enforcement in opioid overdose response: Frequently asked questions." The introduction to the document reads:
Claiming nearly 120 American lives daily, drug overdose is a true national crisis. The main driver of this epidemic is opioid overdose (OOD), which cuts across class, race, and demographic characteristics. Certain groups, including veterans, residents of rural and tribal areas, recently-released inmates, and people completing drug treatment/detox programs are at an especially high risk of OOD.

The vast majority of OODs are accidental and result from taking inappropriate doses of opioids or mixing opioid drugs with other substances. These drug poisonings typically take 45-90 minutes to turn fatal, creating a critical window of opportunity for lifesaving intervention. Appropriate assistance, including administration of the antidote naloxone, can quickly and effectively reverse the OOD.

Reducing the time between the onset of OOD symptoms and effective intervention is a matter of life and death. Tragically, many victims do not receive timely medical attention. In many cases, witnesses delay calling for help because they do not recognize OOD symptoms or are concerned about getting in trouble with the law. In other cases, emergency medical response may take too long to arrive or the victim may not be discovered until it is too late.

Law enforcement officers (LEOs) have always been on the front lines of the battle against drug-related harm in our communities. The current OOD crisis is no different. Across the US, law enforcement agencies are increasingly initiating programs to stem the tide of overdose fatalities. This document provides an overview of the frequently asked questions (FAQs) that may arise in agencies that are considering or initiating such efforts.
A couple of Texas legislators (Eric Johnson, Ryan Guillen) have already filed bills to create a defense when drug users call 911 to report an overdose. But equally important is having patrol officers carry Naloxone, an opioid antagonist which "has no potential for abuse," according to the FAQ. It is a "very safe medication with the potential side effect of a theoretical risk of allergy that has never been documented." It can administered nasally or be injected - a company that makes a naloxone auto-injector makes the product available at a discount for law enforcement.

Texas has never passed statutes about the drug one way or another, according to a website that tracks state laws related to naloxone, but I've never heard of a Texas police agency using it."Almost half the states in the United States have passed naloxone access laws that shield 'any person' from civil and criminal liability if they administer naloxone."

The FAQ recommends police agencies partner with local health agencies to procure naloxone and train officers in its use. "In most cases, a protocol called a 'standing order' can be issued for the entire department by any provider holding a license to write prescriptions. Larger departments may have a medical director or other licensed prescribers already on staff, the FAQ noted. In New Jersey and New York, their Boards of Pharmacy "have streamlined the process by which law enforcement agencies can order the medication, allowing these agencies to purchase naloxone directly from a wholesaler instead of receiving it from a retail pharmacy via a prescription from a health care provider." (NYPD equipped nearly 20,000 officers with naloxone.) And North Carolina authorized "agreements between law enforcement overdose response programs and EMS agencies to handle purchasing and training."

Grits would like to see Greg Abbott's Criminal Justice Division look into the possibility of grants to Texas police departments interested in these sorts of overdose prevention programs. There seems to be little downside that I can see and also a real opportunity to save lives.

Ted Cruz adopts Big Government, anti-Tenth Amendment stance on pot

Why has Texas Sen. Ted Cruz adopted a Big Government, anti-Tenth Amendment stance on marijuana policy?

According to Politico, he criticized the Obama administration earlier this year (I'd missed it at the time) for failing to arrest pot smokers in Colorado and Washington state, declaring that the failure of the DOJ to prosecute marijuana cases after voters legalized it in those states is somehow “fundamentally dangerous to the liberty of the people.”

Really? Think about it: Abiding by the voters' wishes is "dangerous" to their "liberty"? But arresting them wouldn't be? This is weird, Orwellian, language: War is Peace, Freedom is Slavery, Ignorance is Strength.

I know the guy's running for President but I wish he would at least pretend to represent Texas and not presume to dictate to other states.

What a tone deaf stance, particularly with Colorado a presidential swing state! How can this guy not realize voters in those states - and Alaska, and Oregon, and D.C. - have their own opinions about liberty and voted in favor of it?

Reed on ridesharing and DWI

Commenting on local anti-DWI efforts, outgoing Bexar County DA Susan Reed cited ridesharing services Lyft and Uber as a means to reduce drunk driving in a city without a robust public transportation system (which pretty much describes every Texas city).

Grits found this interesting because local debates over these services have largely revolved around whether they're fair to taxicab companies, whom one would suppose from the rhetoric enjoy a God-given natural cartel that trumps the forces of capitalism and technology.

The city of San Antonio is considering regulations to limit ridesharing services, but the Texas Public Policy Foundation's Jess Fields rightly suggested yesterday that "San Antonio’s council members would do well to remember that the threat of new competition threatens taxicab companies, not consumers while the threat of drunk drivers is very real indeed."

I'm not a fan of Reed's other suggested DWI solution - "sobriety checkpoints" where every car is stopped at a roadblock regardless of whether there's reasonable suspicion.  But IMO she's right to frame the debate around ridesharing services in terms of providing an alternative to drunk driving.

Wednesday, December 10, 2014

Check out the Smart on Crime Coalition agenda

Texas' "Smart on Crime Coalition" is made up of the Texas Public Policy Foundation, the Texas Criminal Justice Coalition, ACLU of Texas, Goodwill, and the Texas Association of Business. Check out their agenda for the 84th Texas legislative session in 2015.

Judge skirts DWI bust, new guidelines for certifying juveniles, what crime really pays, and other stories

Busy day today but here are several items that merit Grits readers attention, even if I don't have time to fully adumbrate them. 

DA does favor for appellate judge on way out door
Hidalgo DA Rene Guerra is on his way out the door (following 32 years in office and a primary defeat this spring) so there's probably little that can be done in response to his abuse of discretion declining DWI charges against 13th Court of Appeals Justice Nora Longoria. It turned out, though he said no video recorded at the stop, that was a falsehood and the contents were damning. See coverage from Texas Monthly and

CCA: Judges must better explain reasons for certifying juvies as adults
The Texas Court of Criminal Appeals today established stricter criteria for certifying juveniles to be tried as adults, requiring that judges better articulate their reasons for such decisions. See the majority opinion and coverage from the Houston Chronicle. Earlier, the paper reported that this was "the first certification overturned in Texas in a quarter century." That's an amazing statistic! "'It's potentially a really big deal, because there's not a lot of appellate guidance on this issue,' state District Judge Michael Schneider noted." The boy's attorney "hopes the landmark ruling spurs lawmakers to make changes to the practice of certifying certain juvenile offenders as adults, a process criminal justice advocates say has been reduced to a 'rubber stamp.'"

Reflection follows tragedy in death of mentally ill Midlander
A mentally ill man was shot and killed in Midland after he threatened police officers with a machete when they visited his home for a "welfare check." They'd first tried and failed to take him down with bean-bag rounds. The Midland Reporter-Telegram followed up with a story titled "Mentally ill often end up in criminal justice system" that merits Grits readers' attention.

Update on feds' hair and fiber review
See a letter from the USDOJ to Attorney General Greg Abbott from September regarding the review of flawed hair and fiber analyses by the FBI crime lab, which were used in some 20,000 cases. Most of these are from the '90s and earlier before DNA analysis supplanted these now dated and discredited techniques and the overstated conclusions drawn from them. Even more hair and fiber analyses were performed at the state level by crime lab analysts the FBI trained. The Texas Forensic Science Commission has launched its own, similar review which is only just beginning to pick up steam. Before long, perhaps we'll see Texas' new junk science writ used to overturn convictions which were principally based on hair and fiber analysis.

Crime does pay, but wages are crappy
A new study finds that street-level drug dealers make about half the minimum wage and that the disparity between front-line workers and management in drug organizations is greater than at US corporations.

Tuesday, December 09, 2014

Making the conservative case against civil asset forfeiture

Yesterday, Grits attended a Texas Public Policy Foundation sponsored panel at the capitol on the topic of civil asset forfeiture reform. It was moderated by Derek Cohen of the Right on Crime initiative (who authored a paper on forfeiture for TPPF earlier this year) with Andrew Kloster of the conservative Heritage Foundation, Matt Miller from the libertarian Institute of Justice, Shannon Edmonds from the state prosecutor's association, and state Rep. David Simpson, an East Texas Republican.

To a large extent, Simpson and conservative reformers were in agreement. Civil asset forfeiture is abused, mostly targeting small amounts of money and personal property instead of going after "kingpins" as was promised when the laws were passed. Most of the recommendations offered will be familiar to long-time Grits readers such as requiring a criminal conviction before a civil seizure (a reform undertaken recently in Minnesota); putting seized monies in state or county general funds instead of law-enforcement budgets; shifting the burden of proof to the state before property may be seized; adopting a minimum threshold for seizures to avoid the petty mulcting witnessed in Tenaha ($25,000 or $50,000 were mentioned as possibilities); and more detailed reporting about assets seized and how the money is spent. Rep. Simpson made a particularly strong case for limiting civil seizures to cases with convicted defendants.

Kloster highly recommended three resources worth passing on to Grits readers:
While somewhat surprising that a Heritage man would recommend such "liberal media" sources, it shows how this topic has become a bipartisan concern that defies ideological labels. There's a left-right coalition to be had on the topic - certainly in Texas and, according to Kloster, also in Congress, which he suggested will see legislation proposed on this topic by Republicans in both chambers next year.

Miller described watching asset forfeiture proceedings in Harris County. On one side of the courtroom, prosecutors had a small law office, he said, with stacks of boxes full of case files with styles such as State of Texas vs. $832, or State of Texas vs. 1989 Chevy Impala. Almost all the cases, he said, were for very small amounts. (He mentioned a study out of Minnesota which found the average forfeiture amount there is about $1,200.) No one was at the defense table, he said, for obvious reasons: Who would pay a lawyer $3,000 to dispute an $832 seizure?

Miller agreed with an audience member during the Q&A that a possible solution may be to allow recovery of attorney fees if assets are recovered from the state, but Kloster demurred to his group's tort-reform stance and said Heritage wouldn't go that far.

Shannon Edmonds from the Texas District and County Attorneys Association had been asked to the event as a last-minute replacement and did his best to counter his fellow panelists. He portrayed conservative motivations for forfeiture reform as stemming from a general desire to reduce government budgets and de-fund law enforcement, citing Grover Norqust's famous line that he wanted government small enough to drown in a bathtub. I found that point a bit disingenuous. It's certainly not parsimony that motivates folks like Mr. Miller, for example, who before asset forfeiture was active fighting for eminent-domain reform. Shannon's critique failed to acknowledge the personal freedom/property rights motivations of movement conservatives on this topic.

Edmonds suggested that elections provided sufficient oversight. The DA who famously bought a margarita machine with forfeiture funds lost his next election, he pointed out, also citing Dallas DA Craig Watkins misspending of asset-forfeiture funds as a contributor to his recent ouster. Of  Miller's description of Harris County forfeiture proceedings, he declared, "That's a lot of due process for $832."

Texas' asset forfeiture laws were passed in 1989 at the height of Texas' worst-ever crime wave, Edmonds reminded the crowd, and has been amended every session since then. Most changes were to broaden the statute's scope to allow for more, easier seizures, he said. But state Sen. John Whitmire had also passed reforms in response to the Tenaha mess and other scandals that placed new restrictions on officers' ability to coerce drivers to sign roadside waivers, modestly strengthening due process before forfeiture proceedings may go forward.

Finally, perhaps thanks to truncated preparation time, Edmonds reverted to an argument he frequently uses in other contexts - particularly whenever anyone suggests scaling back "over-criminalization" - (mis)quoting G.K. Chesterton to say, “Don’t ever take a fence down until you know the reason why it was put up.” In this case, though, that's hardly a compelling sentiment. We know why the law was enacted: To seize money from drug "kingpins." And clearly cases like State vs. $832 aren't targeting kingpins. The law was supposed to de-fund drug smuggling organizations which instead have flourished unabated throughout the last quarter century and possess so much liquidity that their cash may have saved the economy during the 2008 global banking crisis.

In sum: The law was created to target kingpins but in practice is used on small-timers. It was supposed to de-fund cartels but instead at most has amounted to a minor, inconsistently applied tax on them. It was supposed to provide extras for law enforcement but increasingly many departments rely on forfeiture to make their budgets. We know why the fence was built. Which brings us back to Shannon's quote attributed to Chesterton, which is actually a quote from John F. Kennedy paraphrasing him. Here's the actual Chesterton quote (from his 1929 book, The Thing) on which Kennedy's comment was based:
In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
In that light, today's reformers find themselves in an excellent position to advocate destruction of the civil-forfeiture fence. (By "destruction" I mean requiring a criminal conviction before seizure.) The reasons for its creation are both well known and profoundly flawed. It has failed at all its stated goals except revenue generation, which was supposed to be a happy side effect, not a primary motivator. Moreover, forfeiture has generated a litany of unintended consequences from skewing law enforcement priorities to eroding public faith in the rule of law.

Good fences make good neighbors but crappy fences are a blight. It's past time to tear this one down.

Monday, December 08, 2014

Houston chief says war on drugs a failure, and other stories

Here are a few items which deserve Grits readers attention as my own is focused for the moment outside the blog.

Houston police chief: War on drugs a 'miserable' failure
Houston Police Chief Charles McClelland on Friday called the war on drugs a "miserable" failure and suggested political attitudes have sufficiently shifted, even in Texas, to the point where altering marijuana laws could happen "soon." He declared that "people are beginning to think about this issue differently, and they know that we've got to do something different than what we're doing."

Prison doc: death by natural causes; ME: homicide
The Lubbock Avalanche Journal recently reported that "Six Montford Psychiatric Unit detention officers have not been reprimanded after using force to restrain a 63-year-old inmate who died shortly after the incident earlier this year." The episode may involve a coverup. The paper investigated "after a Lubbock County medical examiner’s ruling this fall contradicted previous rulings by the state." "A Montford doctor originally reported McCoin’s death as natural" but a Lubbock medical examiner declared the case a "homicide."

'Bad traffic law has to go'
The San Antonio Express-News had an editorial calling for abolition of the Driver Responsibility Surcharge.

Jail phones profit from a 'Captive Audience'
The Dallas Observer recently ran a cover feature on Securus and the rise of privatized jail phone service and video visitation at Texas county jails. The topic will be familiar to Grits readers but the coverage was thorough and reaches a new, different audience, one hopes, than this stodgy old blog.

Newspaper calls for mental health investments
The Houston Chronicle editorial board called for construction of a new state mental hospital in the Houston area. According to the paper, "When the Neuropsychiatric Center at Ben Taub Hospital in the Texas Medical Center is out of room, our law enforcement professionals must drive around in their squad cars with people suspected of mental illness, waiting for a bed to open up or looking for an alternative. This happens not infrequently, according to mental health professionals." They also complained of a shortage of competency restoration beds and the aging and outdated Rusk State Hospital, which is a three hour drive from Houston.

Juvenile justice and the arts
Ronnie Sanders, who serves on the Texas Commission for the Arts, wrote a column praising a Bexar County juvenile diversion program with remarkably low recidivism rates in which "Students who have often resorted to violence in the past are taught methods of conflict resolution through writing, acting, team-building and communication skills." Says Sanders, "We should all celebrate when people can be earnestly reformed through the arts," and "we should seek more opportunities and increase funding that could allow more young Texans to transform their criminal past into a life sentence of positive choices and a realization of their potential as a contributing citizen to Texas."

News flash: Crime labs screw up outside of Texas, too
The Jonathan Salvador fiasco was one of five recent misconduct scandals at U.S. crime labs described in this article from Chemistry World. Can you guess the other four? Perhaps, in the near future, Grits will compile Texas' own top five. Hard to believe we only got one in a national top five list on this topic; author Rebecca Tragle should Google "Houston police crime lab scandal" for the granddaddy of them all in Texas.

No way feds reimburse Texas on border security
Texas' request to the feds for reimbursement for the Great Border Security Boondoggle is a laughable exercise in hubris. Given that, IMHO, the entire spending program serves no real security purpose but instead is a political expenditure aimed at snubbing the Obama Administration, why would the feds ever consider paying for it. They're basically asking them to pay for an extended, years-long Rick Perry campaign commercial.

Ten predictions about police bodycams based on experience with dashcams
Having been deeply involved more than a decade ago in the effort to get dashcams in police cars in Texas, I find the description of their effects from The Atlantic to be fairly accurate. However, I disagree that past is entirely prologue when it comes to bodycams, which IMO may have greater deterrent effects for police misconduct because they're recording personal interactions, not just views from a distance. Time will tell. In practice, they support officers stories more often than contradict them and make report writing more accurate. There's as much incentive for police to adopt them as for reformers to support them.

Advice for 1Ls and lawmakers: Don't make laws you wouldn't kill to enforce
Yale law prof Stephen Carter in a recent column offered sound advice to law students that goes double or triple for lawmakers: "On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you."

Sunday, December 07, 2014

Should Texas abolish rather than reform grand juries?

State Sen. John Whitmire has filed legislation to eliminate the "key man" system of selecting grand juries in Texas. But in the wake of national debates of the failures of grand juries to hold police accountable, it's worth asking whether grand juries oughtn't be abolished entirely. Public Radio International pointed out that "England abolished grand juries decades ago because they didn't work." Here's a notable excerpt:
The concept [of grand juries] comes from our colonial parent, England. "It goes back centuries here," explains London-based legal writer Joshua Rozenberg. "In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They're people who actually knew the offenders, as we'd call them today, and could perhaps bring them to justice."

By the 16th century, that morphed into the system we'd now recognize as a grand jury: A group of people listening to a prosecutor's evidence and deciding whether to indict.

But the United Kingdom actually abolished its grand jury system in 1933. "We now send cases that are serious enough straight to jury trial," Rozenberg says. That way, both sides are able to present evidence and make their arguments, which is definitely not the case with a grand jury.

In fact, the UK exported grand juries to most of their former colonies — Canada, Australia, New Zealand — and virtually all of them have stopped using them.

"They are said to be 'putty in the hands of the prosecutor.' In other words, the prosecutor really tells them what he or she wants and they will go along with it," he says. "Or that's what we are told, because we don't really know. We can't watch grand juries at work."

That's why former New York judge Sol Wachtler once famously said that a district attorney could get a grand jury to "indict a ham sandwich." But, Rozenberg points out, "it must be even easier to get the sandwich acquitted if that is what the district attorney may actually want."
Whitmire's bill was reacting to alleged misconduct by grand juries in Houston but the Ferguson and Staten Island episodes (much less a similar episode in Jasper, TX) have cast more light on these shadowy entities than at any point in my lifetime, though their cozy relationship with law enforcement has been well-documented for years. There's an opportunity now for a more substantive debate about the role of grand juries. Perhaps instead of "reforming" them, Texas should abolish these anachronistic vestiges of colonialism and let elected prosecutors make the decision whether to pursue a case, whether against a cop or a private citizen, since as a practical matter that's what's happening, anyway.

Friday, December 05, 2014

McCraw: Terrorist threat at Texas border a myth, or, In favor of reality-based border-security policy: A minority view

The dumbest part of Texas' border "surge": There are no, none, zilch, zero viable metrics for measuring success. It's a truism in public policy of any sort that one cannot solve a problem one cannot measure. A Dec. 4 Austin Statesman story said DPS claimed this week that the surge worked because of increased illegal-immigrant apprehensions. but Rep. Donna Howard called them on this particular line of bullshit, pointing out “that officials also have claimed success when the number of apprehensions is down, which she said has been described as a sign of deterrence. That makes it difficult for lawmakers to figure out 'how much money to appropriate for this activity,'” she said. That's an understatement!

It's not that data-driven policy isn't possible. The McAllen Monitor recently offered thoughtful, incredibly detailed suggestions for fixing federal immigration courts that made loads of sense. (Read them, a summary won't do them justice.) Problem is, at the federal level neither party is advocating an approach that actually processes cases faster. These are good ideas, though, showing the problems are not insoluble if politicians actually wanted to resolve them.

Instead, the state plans to add 4,000 cameras along the border, another initiative that Grits considers a complete waste. There's little evidence cameras work even in crime-ridden inner-city hotspots, much less out in the boondocks along hundreds of miles of border. Then you have to pay people to watch them as well as waste manpower on responding to lots of false positives.

Finally, in a rare moment of (post-election) candor, DPS Col. Steve McCraw affirmed to the committee what anyone with access to Google already knew: That "there is 'no credible information that a terrorist has crossed or will cross' the Texas-Mexico border." I'd add one caveat: There's no evidence that terrorists are coming from Mexico to the United States to do harm. There's evidence that Texas prison gangs crossed the border south to work as soldiers in the Juarez cartel wars and may be responsible for hundreds or even thousands of murders there. Whether one considers them "terrorists" is a political and semantic question.

Otherwise, Greg Abbott, Dan Patrick and other state officials should adjust their rhetoric to reflect acknowledged reality from the state's top law enforcement official. Perhaps it would help to stand before a mirror each morning and recite McCraw's words aloud three times before the day begins - there is no credible information that a terrorist has crossed or will cross the Texas-Mexico border. (In particular, perhaps Breitbart Texas editors would benefit from such an exercise.) Barring that, I don't know what it will take to get Texas politicians to stop telling lies about border security threats.