Thursday, February 26, 2015

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Bill to ban probation for illegal immigrants likely DOA after devastating critique of (un)constitutionality

When state Sen. Joan Huffman, a former district judge, filed her SB 174 forbidding sentences of probation for "illegal aliens," Grits was dismissive, declaring the bill should be dead as soon as its Fiscal Note was calculated and the costs were determined.

It didn't take that long. The bill likely, effectively died night before last when the Houston Chronicle published an item on its website by Prof. Geoffrey Hoffman of the University of Houston Immigration Clinic titled "Houston senator's 'illegal aliens' bill is itself illegal." Hoffman offered up a devastating and IMO irreparable constitutional critique that Sen. Huffman seems unlikely to overcome.

While his discussion of federal case law was compelling, according to Hoffman, the Texas Constitution includes "arguably more expansive equal protection provisions," even, than the 14th Amendment to the US Constitution. The article concluded:
In section 3a, [the Texas Constitution] provides that "Equality under the law shall not be denied or abridged because of sex, race, color, creed" or - importantly - because of "national origin."

Furthermore, section 3 of the state's constitution provides for equal treatment under the law, considering that "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments. …"

The Texas Legislature should carefully consider what a misguided rule like the one proposed in SB 174 would mean. Texas judges are not immigration judges. But even if they were, the determination whether or not someone should be branded an "illegal alien" is determined after a lengthy process by the Executive Office for Immigration Review, a branch of the U.S. Department of Justice.

The decision is made considering the availability of relief, after a full review of a person's personal and immigration history, among many other factors. A rule which brands people without due process, and in violation of equal protection, cannot stand.
That's a strong argument. The inclusion of "national origin" in Texas' equal protection guarantee seems to this non-attorney pretty much decisive. It's hard to see the Legislature seriously considering this bill now that these grave constitutional flaws have been exposed, especially given the sky-high fiscal note the idea would surely receive if the proposal ever got far enough along in the process for the LBB to determine its cost.

Don't get me wrong, The Texas Legislature passes unconstitutional stuff all the time. But usually they maintain plausible deniability about a bill's defects at least until after its effective date. In this case, SB 174's flaws have been exposed before its first hearing and the bill would have to be altered beyond recognition to avoid running afoul of the constitutional problems Mr. Hoffman identified. Well done, sir.

Bexar POs allegedly linked romantically to probationers

An investigation by WOAI radio in San Antonio:
uncovered a pattern at Bexar County's Adult Probation Department: officers becoming romantically involved with the defendants they're supposed to be monitoring.

Disciplinary records tell of one probation officer passing information to a defendant she friended on Facebook. A supervisor using his county cell phone to call and text a probationer day and night. And one officer trying to intervene to keep police from arresting her fiancé who was on probation. That last instance was caught on SAPD dash-cam video. It was after 1:00 a.m. on a March morning.
See more on the story.

And here's the kicker: This is arguably not the most embarrassing headline the department has faced in recent months.

House budget markup funds prison health below what's needed to meet 'minimum standards'

At the Texas House Corrections Committee meeting this morning, TDCJ chief Brad Livingston said the House budget markup on prison healthcare gave the agency $85 million of the $174.8 million extra that they said in their Legislative Appropriations Request (LAR) would be required to meet "minimum standards" in the coming biennium.

This news raises several questions which remain unasked after this morning's session: Which standards will TDCJ fail to meet under the budget scenario in the markup? Can that failure be quantified? What would that $89.8 million have paid for that the agency must do without if the House budget number stands? Given that it's presently operating at a lower budget level, is the agency meeting "minimum standards" right now?

That said, it's early in session, they were hustling through the agenda to adjourn before the full House convened, and most of the committee members including the chairman are new to these issues. They'll learn a lot more about correctional managed health care, I've little doubt, and gain a better understanding of what questions to ask as the session progresses.

Moreover, I was comforted to see the committee at their first meeting appeared open to continuing the reformist track that  John Whitmire and Jerry Madden sent the agency down beginning in 2007. Chairman Jim Murphy in his introductory remarks mentioned a serendipitous moment when, the morning after the Speaker asked him to become Corrections chair, his pre-scheduled Bible study included Hebrews 13:3, which admonished Christians to "Remember those in prison, as if you were there yourself. Remember also those being mistreated, as if you felt their pain in your own bodies." Let's face it, if one must choose a Bible verse to encapsulate a model attitude toward criminal justice, one could do worse.

Hacking ATMs with a $35 Raspberry Pi

The Raspberry Pi is a small computer, slightly larger than a credit card, which was created in the U.K. to teach kids computer coding and costs $25-35. It's a neat little board; I've got a couple of them sitting in my workshop as I write this and, along with Arduino boards out of Italy (and their myriad spawn), they are helping take both hobbyist and professional development of embedded electronics projects to astonishing new places.

But any tool can be used for good or ill, so I was fascinated to see this video on one of my favorite blogs demonstrating how an ATM can be hacked with an inexpensive Raspberry Pi board and a USB cable in two minutes and made to spit out cash. The biggest catch:
Before Raspberry Pi can be installed inside an ATM and connected to Ethernet, USB, or RS-232 ports, an attacker needs to open up an ATM enclosure. At the machine’s upper part, there is a service area where the host that manages the ATM’s devices and network hardware, including poorly protected GSM/GPRS modems, are located. Unlike the safe located at the bottom, the upper part is quite easy to access — there is hardly any supervision over it if any. Attackers may open the service area using easy-to-make keys and simple materials at hands.
That's a lot easier than driving a truck through the front door and trying to haul away the entire ATM machine! ATMs are so ubiquitous, it will take quite a while to retrofit them all with target hardening security measures. Likely, companies will wait until they've taken losses before justifying that big a security investment.

N.b.: The solution here is decidedly NOT to ban or regulate Raspberry Pis nor to treat computer programmers as some scary security risk. The benefits from free innovation far outweigh the inevitable negative externalities, in the big picture. I mention it merely to note that the nature of crime is changing in the 21st century. Along with thefts of credit card data, these sort of tech-based attacks are a major game changer that most law enforcement agencies find themselves ill-prepared to confront.

Wednesday, February 25, 2015

Recalling Texan origins of the Prison Rape Elimination Act

Our pal Maurice Chammah has a feature in The Atlantic on prison rape, which includes this notable reminder about the Texan origins of the Prison Rape Elimination Act, which passed Congress unanimously in 2003 and was signed by President George W. Bush:
this rare moment of bipartisanship was born out of tragedy. In 1996, a 17 year-old prisoner named Rodney Hulin Jr. had torn up his bed sheet, tied it above the door of his cell in the Clemens Unit in Brazoria County, Texas, and jumped down from the top bunk of his bed. When correctional officers cut him down, Hulin was comatose, and he died four months later.

Hulin had been raped, beaten, and forced to perform oral sex within three days of his arrival at the unit. He asked to be placed in protective custody and was turned down. After his suicide, a picture of his small shoulders and thin face circulated on major news networks and Hulin became a symbol of two related phenomena. One was the prevalence of new laws that allowed youth to be sent to adult prisons, rather than juvenile facilities, for non-violent crimes (Hulin had committed second-degree arson, resulting in less than $500 of property damage). The other was prison rape.
MORE: A reader turned me on to this 6.5 minute video, "No Escape: Prison Rape in America - The Rodney Hulin Story."

DPS border 'surge' compromised crime fighting in rest of state

Who is surprised to learn that the border "surge" by the Texas Department of Public Safety "compromised the Department of Public Safety’s ability to combat crimes elsewhere"? Or so the agency told the governor and state leaders in a secret assessment which was leaked to the Houston Chronicle.

According to the paper, "While the report gave more detail than has been publicly released about the claim often made by [Lt. Gov. Dan] Patrick and other state leaders that the deployment has reduced crime, it focused on illegal crossings and cartel activity in the operation zone, providing less detail about local crimes and leaving open the possibility that criminals have simply shifted their efforts elsewhere." The story noted dryly that "some experts have attributed [the reduction in illegal crossings] to other factors," which is a pretty dramatic understatement. The border was already the safest region in the state before DPS began any "surge" operations, which is probably why the agency didn't even attempt to claim it reduced crime in the area - any such claim would inevitably run afoul of contradictory Uniform Crime Report data in the medium to long term. We've been around this block many times.

The Texas Senate has proposed spending an astonishing $815 million over the next biennium on border security above and beyond regular DPS patrols in the area. That's an insanely large amount of money being funneled down a black hole. Grits has suggested the state could abolish the Driver Responsibility surcharge with a portion of that money and still spend well more than double what was budgeted last biennium on border security.

There's no public safety justification for spending that much at the border. Thumbing the state's collective nose at a president who will never again run for re-election just isn't worth that much scratch, and at root that's the only reason this is happening.

MORE: From Lisa Falkenberg at the Houston Chronicle:
Even the Legislative Budget Board, which is charged with making recommendations to lawmakers on spending, has acknowledged there's no way for it to measure progress toward the border security goal

A "law enforcement sensitive" report issued to lawmakers and obtained by the Chronicle on Tuesday offers little clarity, just page after page of anecdotes and unsubstantiated or ill-defined numbers. In it, DPS gives Operation Strong Safety II, as it is called, full credit for the dramatic reduction in last summer's border apprehensions, even though federal efforts to stem the tide of unaccompanied minors were well underway.

The one thing the report is clear about: The operation "does not secure the border." I think we knew that.

Tuesday, February 24, 2015

Remembering Wiley College while the rest of Texas remembers the Alamo

With so many Texas politicians tweeting and opining today about William B. Travis' famous Feb. 24th, 1836 letter from the Alamo, Grits was delighted to discover in my Inbox this morning my "Today in Texas History" email from the Texas State Historical Association leading with "Rangers sent to Wiley College in response to student demonstrations - February 24, 1969."

Though the Alamo story is beloved, I've heard it a thousand times if I've ever heard it at all. There was a time I probably could have quoted you most of Travis' letter. But even though I grew up not far from Marshall in Tyler, I'd never heard the story of 100 Rangers and assorted other cops descending on Marshall in 1969 to squelch protests at an historically black college. (I'd have been two years old at the time.) Nor was I aware that, according to the TSHA, "In 1962, Wiley and Bishop College students held sit-ins at the local Woolworth store. Their activities and the local reaction made national headlines."

When I searched for more on that earlier episode, I found this account that placed the Woolworth sit ins in 1960, not 1962, in the weeks following the famous sit-ins in Greensboro, North Carolina. Dr. Martin Luther King Jr. spoke at Wiley College on March 17, 1960, and the Marshall sit-ins began eleven days later. "Police arrested 20 students at three different lunch counters for interfering with businesses." Then,
In response students gathered in front of the courthouse and sang. A crowd of white people gathered, and in a few hours grew restless. In an effort to clear the group, the city fire department unleashed hoses of high pressure water at the demonstrators and several bystanders. Police arrested 37 more students in the process.

On 31 March, a crowd of 350 students met at the bell tower of Wiley College for prayer and songs in support of those still in jail. Later that day, the student leaders announced a boycott of white merchants.

Meanwhile, Texas Governor Price Daniel ordered an investigation of [one of the organizers] Dr. Wilkerson after discovering his former ties to the Communist Party. Within a week the Bishop College president fired Wilkerson.
Eventually, school administrators called for an end to the demonstrations and that summer, the "Wiley College president fired the entire teaching staff except for those who supported the administration during the sit-ins."

Fascinating. I'd never heard those stories before, which lamentably has been a recurring theme for me recently.

Benchslap for judge-turned-Tarrant DA for gagging defense counsel at sentencing

From Decatur attorney Barry Green:
New Tarrant County DA Sharen Wilson had a case she presided over as a judge reversed on Thursday for the most basic of reasons: She refused to allow an attorney defending his client to speak during a hearing before she sentenced his client to prison. Excerpt: "Defense counsel: Can I make a closing statement when the time comes? The Court: I don't need one." Think about that. After I got over what an amazing basic legal error that was, I became more amazed that she didn't want to listen.  Heck, I wouldn't say that to a waiter who asked, "May I make a suggestion?"
Given her choice to run for Tarrant County District Attorney, perhaps Ms. Wilson understood her predilections were more suited to pro-government advocacy than judging, though plenty of Texas judges view those roles as indistinguishable, starting at the top.

Smarter probation, risk assessments reduce recidivism, incarceration costs

The Midland Reporter Telegram offered up a rare feature (Feb. 23) on the local probation department. The article opened with this generalized assessment:
Texas’ prison reforms beginning in 2007 revolutionized the state's long-standing “lock-em-up” philosophy. Over the years, the reforms have been lauded for abating the pressures of overcrowded prisons and efficiently using taxpayer dollars. But how these reforms translate from county to county can vary.

One facet of these reforms was an outgrowth of research and studies that showed how strong probation programs can reduce the number of offenders who are sent to prison, released and then are sent back to prison.
Strong probation, or in Texas’ parlance, “community supervision” programs, can have a large impact on the rising cost of the correctional system in the state budget.

"If you can take low-risk offenders and send them to an outpatient program, if you can get them through there … it’s much better than them being (sent) to a prison," said Jed Davenport, director of Midland County's Community Supervision and Corrections Department, which administers court-ordered probation.

"If you take someone who's low-risk and you put them in a program with high-risk offenders, you just increased the likelihood (by 63 percent) of them reoffending," Davenport said.
And here's a more specific discussion of what strong probation means on the ground:
The two major changes made in the CSCD boil down to the methods by which probation officers supervise offenders, according to Davenport.

"Traditional probation for years was just, what I call, straight-lined enforcement of probation," Davenport said. "What we know doesn't work -- or doesn't help the probabilities of people not reoffending -- is just coming in and just roll-calling probation. There's got to be more to it."

In previous years, Texas' criminal justice system relied on simplistic assessments for predicting future violence in offenders. These predictions were made with little or no scientific basis and too often were wrong, according to a study out of Sam Houston State University -- "Risk Assessments in the Texas Criminal Justice System" -- by Mary Conroy.

"It seems clear," the study reads, "that the potential for violence was overestimated in many cases."

The retooling of community supervision programs by the Texas Legislature in 2013 produced the Texas Risk Assessment System, which was made mandatory for all correctional departments to use as of Jan. 1, 2015.

Under the guidelines of the TRAS, probation officers are given the training and tools to take a more psychoanalytical approach to assessing risk-factors in offenders, Davenport said. These risk factors include anti-social attitudes, substance abuse habits, lack of empathy for others and impulsive behavior, he said. The assessment will classify offenders as low-risk, medium-risk or high-risk.

Rather than just rubber-stamping probationers as having violated or not violated their terms of probation, "officers are having 10- to 15-minute discussions or guidance and instruction with them saying, 'This kind of thinking leads to this kind of behavior; you gotta stop thinking this way,'" Davenport said. "Criminal thinking leads to criminal behavior."
The department is seeking funding for additional treatment and diversion programming from the 84th Texas Legislature.

Monday, February 23, 2015

Infographics on Texas court system

The Office of Court Administration has been publishing a series of interesting infographics about the Texas court system. Here are several that caught Grits' eye.

Sunday, February 22, 2015

High speed chases, asset forfeiture, civil commitment and remembering 'Pottygate'

Here are a few items whch haven't made it into independent posts, aren't likely to in the busy week ahead, but which merit Grits readers' attention:
  • Read Texas Monthly's Dan Solomon on "The Causality of High Speed Police Chases"
  • Check out a San Angelo Standard Times editorial titled, "Curbing asset forfeiture abuse"
  • From the Houston Chronicle, "Harris County's two largest police agencies are testing body cameras on officers but refuse to release their policies detailing when the cameras should be turned on and off to maximize accountability and minimize intrusiveness."
  • Chron columnist Lisa Falkenberg asked, "If costly border surge is working, where's the proof?"
  • Mike Ward and Anita Hassan from the Houston Chronicle offer initial details on what a revamped and perhaps renamed sex offender civil commitment program might look like under legislation soon to be proposed by state Sen. John Whitmire. Judge Seiler would see his duties over the program eliminated and distributed among other judges and a new lockup facility would be opened near Houston to house these offenders who've served their full sentences but are subject to additional punishment post-sentence under the guise of treating their underlying desires, with the caveat that no one has ever been deemed by the program to be successfully treated. 
  • As Texas prepares to consider raising the age at which youth are tried as adults from 17 to 18, the Dallas News has published several stories describing how the Dallas County jail presently handles those offenders, describing conditions at the jail for 17 year olds, and assessed several, related juvenile justice issues facing the 84th Legislature.
  • In reaction to this Grits post on state Rep. Debbie Riddle's bill to criminalize entering a restroom labeled for the opposite sex, a commenter reminded me of "Pottygate" from the early '90s which was handled by the Legislature quite differently.

Capital cases called into question

Allegations of police and prosecutor misconduct highlight a pair of capital cases that were the subject of recent high-profile MSM coverage.

First, consider the latest appeal of Linda Carty, who was "convicted of plotting the murder of her neighbor, Joana Rodriguez, in order to steal Rodriguez's newborn baby in 2001." Reported the Houston Chronicle (Feb. 13), "Her previous appeals have all failed - despite international protests over the fact that her Harris County-appointed attorneys spent only two weeks preparing for her capital trial." However, Carty:
gained support for a new appeal from two unlikely sources: the DEA agent for whom she was once a confidential informant and a star prosecution witness who has now recanted.

In affidavits separately supplied to Carty's current defense team in 2014, the agent and two of Carty's co-defendants allege that Harris County prosecutors crossed ethical boundaries and threatened them to ensure Carty's conviction.

Retired DEA Special Agent Charles Mathis, in his affidavit, specifically accused Connie Spence, the lead prosecutor on the case, with threatening to cross-examine him in open court about "an invented affair that I was supposed to have had with Linda." Mathis insists that allegation was false, but worried that it could have clouded his law enforcement career if Spence had carried out her threat in a capital murder trial that generated considerable publicity.
See Mathis' affidavit. Further, reported the Chron's Lise Olsen:
The affidavits from two of Carty's co-defendants accuse Spence and another prosecutor of threatening them with a death sentence and of feeding them stories designed to "nail" Carty.

The allegations of prosecutorial misconduct have been presented as "new evidence" in support of Carty's effort to win a hearing, a request now pending in the Texas Court of Criminal Appeals that was filed by Michael Goldberg, a Baker Botts civil attorney who has stuck with the case for more than a decade pro bono.
Pretty explosive stuff, if it can be proven. And harder to discredit Carty's DEA handler than some jailhouse snitch. Definitely one to watch.

In other capital news, investigators on a true crime TV show this week announced they believe Rodney Reed, a Bastrop man sentenced to die soon for the 1996 murder of Stacey Stites, was falsely convicted. Reported the SA Express-News (Feb. 18):
The TV investigators found that the evidence points blame toward Stites’ fiancĂ©e at the time, Jimmy Fennell Jr., who provided a timeline of his whereabouts that at the time ruled him out as a suspect.

“For me, it’s obvious,” [retired NYPD detective sergeant Kevin] Gannon said. “As far as I’m concerned, the murderer is Jimmy Fennell… I can’t see it being anybody else.”

The investigators also sourced evidence that shows Fennell has a violent past, and that he is currently serving time in prison for kidnapping and sexually assaulting a woman while on duty and in uniform as a police officer.
See parts one and two of the A&E feature on Rodney Reed's case.

Saturday, February 21, 2015

Debbie Riddle wants Potty Police to combat gender bending in Texas restrooms

From the "You Can't Make This Stuff Up" Department, I think this may be my favorite* new crime proposed yet in 2015: Texas state Rep. Debbie Riddle has filed legislation making it a Class A misdemeanor for a transgendered person to use the restroom of their adopted gender, even after reassignment surgery, and a state jail felony for a building manager to allow them to do so.

Indeed, the bill goes beyond transgendered people to criminalize anyone entering the restroom of the opposite gender with three exceptions: if they enter for custodial purposes, to give medical attention, or accompanying a minor under eight years old. I can think of more than one instance in my life where I would have committed a Class A misdemeanor under this provision, how about you?

My wife suggested that many women may have violated this proposed law at nightclubs or public events because the lines to women's restrooms are always quite long and the stalls in the men's room are frequently empty.

Criminalizing that demographic may be an unintended consequence. But to me, what makes it look like the bill targets transgendered folk are the particular gender definitions imposed in the bill:
For the purpose of this section, the gender of an individual is the gender established at the individual's birth or the gender established by the individual's chromosomes.  A male is an individual with at least one X chromosome and at least one Y chromosome, and a female is an individual with at least one X chromosome and no Y chromosomes.  If an individual's gender established at the individual's birth is not the same as the individual's gender established by the individual's chromosomes, the individual's gender established by the individual's chromosomes controls under this section.
That definition understates the complexity of possible chromosomal variations and conflates a cultural construction - "gender" - with chromosomal sex determination in ways that don't jibe with modern understanding. "Gender" is not necessarily "established by the individual's chromosomes." According to the World Health Organization, "Gender, typically described in terms of masculinity and femininity, is a social construction that varies across different cultures and over time. There are a number of cultures, for example, in which greater gender diversity exists and sex and gender are not always neatly divided along binary lines such as male and female or homosexual and heterosexual." One may or may not agree with that assessment of gender vs. sex, culture vs. science, but the WHO analysis points to the fact that these questions are not nearly so cut and dried as the binary framework suggested in Rep. Riddle's bill. At a minimum, it would set the stage for years of litigation as every gender-identity permutation steps forward to assert their preferences. Implementing this statute would be a full-on mess.

Ironically, it's likely that, if this bill passed, it would hasten the move toward unisex restrooms so that building managers wouldn't risk committing a state jail felony if the wrong person uses the wrong toilet. It'd seem like the only rational response from a business perspective. Why risk committing a state jail felony when you can eliminate the possibility by posting two stick figures on the door instead of one?

Unintended consequences, anyone?

*My "favorite" not because I approve of the suggestion but because I'm entertained by it.

MORE: Apparently this group has been promoting this idea for some time. Their effort appears to have begun in earnest after Houston Mayor Annise Parker issued an executive order allowing "transgendered individuals to use restroom facilities in city-owned buildings for the gender with which they identify." Last year she backtracked on the issue, to a degree. AND MORE: Checking Google News, I discovered there is legislation on this topic (failing) in Kentucky and Florida. According to this source (Feb. 10):
In 2013, a proposed bill in Arizona (why is it always Florida and Arizona?) would have allowed police to stop anyone suspected of using the "wrong" bathroom and demand identification. Had the bill not been defeated, violators would have faced a $2,500 fine and up to six months in jail. Earlier this month, a Colorado bill that died in committee would have banned transgender students from accessing changing rooms.
So this is a coordinated effort across multiple states, not just one oddbird bill in Texas.

AND MORE: This article from Towleroad followed up on Grits' story and has been driving a lot of traffic here. WOAI Radio covered the bill and contacted Debbie Riddle's office, who surprisingly declined to comment. Rep. Riddle hasn't been microphone-shy in the past. The San Antonio Current also ran a piece. AND MORE: Texas Monthly picked up on the story. See coverage from The Advocate and State of Trans

And three days after Grits broke this story, there's this: Via the Dallas Voice, Equality Texas put out an action alert opposing Riddle's legislation.

Friday, February 20, 2015

Authorities storm Bryan VFW to photograph, fingerprint and DNA swab secessionist group

At a VFW hall in Bryan, reported Zeke MacCormack at the SA Express News (Feb. 19), the Kerr County Sheriff along with the "FBI, the Texas Attorney General’s office, Bryan police and Brazos County deputies" raided a VFW Hall where sixty members of the Republic of Texas were holding a meeting, ostensibly because two of them allegedly committed document fraud, though "No one was arrested and no charges have been filed."

Anyone who's followed the Republic of Texas' antics wouldn't doubt some of their members issued phony liens, writs or summonses. It's sort of their thing.

Rather than focus on the particular offenders, though, "officers photographed, fingerprinted and confiscated belongings of numerous members even though only two are accused of wrongdoing," and are "are examining computers, phones and other items seized" from the group. Here's a bit more detail on the search warrant:
A sworn affidavit filed by Kerr County deputy Jeff McCoy in support of the search warrant alleges that Cammack, 53, and Kroupa, 59, committed the misdemeanor of simulating legal process. ...
If charges are brought in the case, they could be filed in Kerr County or Brazos County, said Assistant Kerr County Attorney Ilse Bailey.

The search warrant issued Feb. 12 by state District Judge Keith Williams authorized collection of fingerprints, photos and DNA swabs from those at the VFW hall to prevent anyone from providing a false identity to authorities.

It also authorized officers to seize computers, cell phones and paper documents “relevant to, or which describe criminal conduct or suspected criminal activity.”
Detaining, photographing, fingerprinting and swabbing members of a political group because they attended a meeting is a lot different from investigating wrongdoing by individuals. I've no problems with investigating these misdemeanor document fraud cases (though I'm surprised it would require the FBI to do it), but as described that seems like an awfully sweeping warrant.

My advice to authorities would be: Don't overreach and make martyrs of a bunch of kooks. Prosecute the ones who commit crimes but leave the rest of them free to believe whatever false, nutty, nonsensical silliness they want. Judge Williams may be fed up with the Republic of Texas' courthouse antics, but he'll hand them an unintended public relations victory if the mailed fist of justice fails to distinguish suffciently between villains and fools.

Correction: This post originally said the VFW hall in question was in Kerrville. The search warrant affidavit was filed in Kerr County but the actual raid was in Bryan. Sorry for any confusion.

A recipe for 'less government': Cut corrections costs by reducing incarceration of nonviolent offenders

Greg Abbott's trouncing of Wendy Davis and the election of Republican supermajorities in both chambers of the Texas Legislature means the state is now run by people who've spent their entire political careers calling for lower taxes and "less government." But those two things are not always synonymous.

Reducing taxes is only a sustainable goal if government simultaneously reduces the number of things for which it's obligated to pay. Otherwise, what occurs in practice is cost shifting, not cost cutting. Sustainable tax cuts must be preceded by cuts on the spending side, which is the piece that's largely been missing from proposals so far by the state leadership. True to form, most of our politicians calling for tax cuts simultaneously want to boost spending at the border, on roads, and for a laundry list of other items. This year, perhaps they can get away with that because of expanded revenue from a thriving economy. But the vicissitudes of fate dictate that won't always be the case.

Grits can't speak as knowledgeably to other areas of the budget, but criminal justice spending continues to balloon well beyond what Texas' declining crime rates might lead one to anticipate. Investments in diversion spending from 2007 onward have helped prisoner numbers level off, but their population is aging and overall costs continues to rise. (Medical providers have told TDCJ, for example, they need $174.8 million more for healthcare alone in the next biennium to meet minimum standards.)

If the Legislature chooses to incarcerate the same number of people it does now, much less if they want to increase the number of people in prison, or allow it to increase, then costs will continue to escalate and taxes must be gathered from some source or another to pay for it. Ditto for county jail and indigent defense costs, which are big cost drivers for county property taxes.

So, what policy choices would facilitate lower spending on criminal justice without harming public safety? Here's a simple recipe for cutting corrections budgets in Texas at both the state and local level by reducing incarceration of nonviolent offenders:

Make small-time drug possession a Class A misdemeanor
Pass legislation reducing penalties for possessing less than a gram of a controlled substance (roughly the contents of a Sweet-N-Low packet) from a state jail felony to a Class A misdemeanor, with a penalty of up to a $4,000 fine and a year in jail. According to the Legislative Budget Board, this move would save the state nearly $100 million in the coming biennium and allow TDCJ to close multiple state jail facilities. Grits would suggest spending a portion of the savings on new misdemeanor probation programs aimed at reducing caseloads, bolstering treatment programming, and managing the additional probationers.

Index property crimes to inflation
Following the Senate Criminal Justice Committee's recommendation, index property crime thresholds to inflation and deal with petty thieves at the local level instead of through the state prison system. Value thresholds set in 1993 are outdated and create a situation where cases that would have been misdemeanors creep into felony range because of economics, not increased culpability. The Legislative Budget Board in 2013 declined to estimate the precise budget effects of adjusting property thresholds upward but acknowledged that:
Raising the threshold for the value of property stolen is expected to result in decreased demands upon the correctional resources of counties or of the state due to shorter terms of probation, or shorter terms of confinement in county jails or prison.  Since the bill is raising the threshold for the value of property stolen for theft (misdemeanor and state jail felony) the impact on the state as a result of raising the threshold is likely to result in a decreased demand on the correctional resources of the state since offenders previously punished as state jail felons would now be punished as Class A misdemeanants.
Similar to the proposal on drug crimes, it'd be nice to see a portion of savings from this move go to local probation departments to help manage the extra probationers they'll receive as a result.

The above suggestions would reduce the state budget, perhaps allowing the Legislature to close three to five state jails, probably through eliminating private prison contracts set to expire in the near future. But will counties be ready to handle those new cases? They will if the Lege finishes off its cost-reduction regimen by following this advice:

Shift B misdemeanors to Cs on small-time pot possession and invalid licenses
Here's how to free up resources at the local level to manage those new offenders who otherwise may have been sentenced to TDCJ: Reduce penalties for low-level pot possession and driving with an invalid license (DWLI) on subsequent offenses from Class B to Class C misdemeanors (or in the case of marijuana, perhaps applying a civil penalty, as suggested by state Rep. Joe Moody.) Those two changes in 2014 would have avoided more than 90,000 Class B arrests (source: add total new cases for marijuana possession and Class B DWLI from here and here), respectively, reducing counties' policing, jail and indigent defense costs by more than enough to offset the new, additional defendants who would be shifted to county purview from the state jail felony category. (See Grits' recent column in the Dallas News advocating those reforms.)

Make those few, interconnected changes and the state could curb upward pressure on incarceration spending at the state and local levels, saving nine-figure sums while adequately funding local systems and reducing burdens on county government, perhaps closing several jail units in the bargain.

What this proposal fails to address are rising healthcare costs of long-time prisoners with insensibly interminable sentences whose end-of-life medical bills drive higher prison health costs. However, medical parole debates have been contentious and the politics of reducing long sentences for violent offenders are more volatile. These suggestions instead would reduce the churn of short-term state jail inmates convicted of nonviolent offenses, focusing state resources on more serious offenders and leaving small-timers to the locals to manage with new funds derived from the resultant budget savings.

That's IMO what's politically possible in 2015 and, if the Lege would do it, they could lay claim not just to cutting taxes but also smartly cutting spending. For "less government" to also be wise government, both have to occur.

TX Chief Justice: Decriminalize truancy, fund indigent defense, legal aid

Texas Supreme Court Chief Justice Nathan Hecht this week called on the Legislature to decriminalize truancy and expand state funding for legal aid and indigent defense. The story in the Austin Statesman (Feb. 18) opened:
Speaking to both houses of the Legislature on Wednesday, Texas Supreme Court Chief Justice Nathan Hecht pressed lawmakers to decriminalize school truancy and spend more on legal aid to military veterans.

Hecht also reminded legislators of their duty to ensure that indigent and middle-class Texans are not priced out of access to the courts — whether it be for civil-court remedies, such as restraining orders for victims of domestic abuse, or for legal help for poor defendants facing criminal charges.
His comments on truancy were particularly notable: “When almost 100,000 criminal truancy charges are brought each year against Texas schoolchildren, one has to think that maybe it’s not working. Playing hooky is bad, but is it criminal?” he asked. Reported Chuck Lindell, "A better solution, Hecht said, would be for schools and courts to provide prevention and intervention services designed to get students back in the classroom."

Hecht also, "Called for increased state spending for court-appointed lawyers and public defender offices for indigent defendants accused of a crime, saying the cost has jumped 137 percent since 2001 and is borne mostly by counties." More money, though, isn't the solution to every problem. Grits has suggested the state could reduce indigent defense costs by reducing penalties for low-level nonviolent offenses to fine-only Class C misdemeanors or comparable civil penalties.

Hecht also "Sounded the alarm over partisan judicial elections, saying judges face 'harsh political pressure' that threatens their independence and raises questions about their integrity," though he offered no solutions.

Thursday, February 19, 2015

Pot push prioritizes less government; 'legalization' in Texas not on table in 2015

Judging from the press, the Marijuana Policy Project's lobby day at the Texas capitol yesterday appears to have gone well. See coverage here, here, here, here, here, here, and here. Much of the coverage mentioned the professional presentation of lobby-day participants in contrast to stoner stereotypes, which is a good sign, though some reporters still can't discuss the issue without giggling. Happily, it sounds from the coverage like Speaker Joe Straus may be open to allowing bills reducing penalties for low-level marijuana possession to get a vote on the House floor. Bills to that effect have cleared committee in the past but never seem to get set on the House floor calendar.

Meanwhile the press, in reductionist fashion, continues to frame most marijuana issues as being about "legalization." However, though a majority of Texans support that, that's not what's at stake this legislative session. Instead, the bill with the most momentum appears to be Rep. Joe Moody's legislation to create a civil penalty for low-level pot possession, a move which would have kept nearly 65,000 people last year from being arrested and taken to jail while still punishing them. Other legislation by Rep. Harold Dutton and Gene Wu would reduce penalties for small amounts to a Class C misdemeanor.

As Grits argued in a recent guest column in the Dallas Morning News, I don't view such bills through a "legalization" lens so much as from a "less government" perspective. Jails are a major driver of county property taxes. And, "If you want to cut the budget in a meaningful, sustainable way, you must identify something government is currently doing that costs money and choose not to do it."

Choosing to stop arresting and jailing pot smokers and paying for their indigent defense costs fits that bill precisely. Bottom line: If you want government to cost less, make it do less stuff. And this is one of those things the Legislature could just let the locals stop doing.

Sex offenders charged with phony crimes to clear space on supervision rolls

Last weekend the Houston Chronicle published a followup story (Feb. 15) on the Office of Violent Sex Offender Management and Texas' dysfunctional civil commitment program. The article opened:
The state of Texas routinely sent sex offenders back to prison as new arrivals entered its civil commitment program, lacking funds to accommodate all of those being confined for what is supposed to be ongoing treatment.

While the U.S. Supreme Court has sanctioned civil commitment in Texas and 19 other states as long as it is therapeutic and not punitive, some legal scholars say Texas' program has been run to keep sex offenders in custody indefinitely.

Their constitutional concerns now have been bolstered by state records and interviews that suggest the agency charged with overseeing the civil commitment program, the Office of Violent Sex Offender Management, created a revolving door to avoid a shortage of bedspace, often using minor rule infractions as grounds to send its charges back to prison, sometimes for life.

Sen. John Whitmire, chairman of the Senate Criminal Justice Committee, now is calling for a review of all cases in which program participants, who already had completed their criminal sentences, were sent back to prison for breaking program rules.

"There's no question to me that they revoked more people when they ran out of beds, so they could continue committing people to the program," said Whitmire, who has spearheaded calls to reform the Office of Violent Sex Offender Management. "That's absolutely not the way this program was supposed to work."
The new agency head "has ordered the practice of criminally charging the offenders for minor technical violations stopped, and she is reviewing every case before it is referred to prosecutors," reported Mike Ward and Anita Hassan. The chart at right demonstrates how the number of convictions closely matched the number needed to bring their caseloads down to the levels funded by the Legislature.

Nothing excuses bureaucrats for charging people with phony crimes so that, for their own convenience, they can send them back to prison for minor rules violations. But it's true the agency finds itself between a legislatively created rock and a hard place. The Lege required that, "Under a 2005 change in the law [that] all of the committed offenders must live in jails, halfway houses or supervised apartments under contract with, or approved by, the Office of Violent Sex Offender Management." But "supervised apartments" face constant NIMBY backlash and halfway houses and jails aren't viable options.

The article ended with Sen. John Whitmire wondering aloud, "What do you do with them if you have no bed for them to go to? ... You can't send them back to prison because they have completed their sentence," he pointed out, "No one wants them released to the street. But if there are no beds available, where do they go?"

That's the question, isn't it? Being tough on crime is expensive and, eventually, politicians must either budget sufficiently for their policies or back away from them. Texas has reached precisely that point when it comes to the sex offender civil commitment program. Time to fish or cut bait.

MORE: At yesterday's Senate Finance hearing these issues were prominently raised. Again from Ward and Hassan:
Marsha McLane, executive director of the Office of Violent Sex Offender Management since last May, warned lawmakers: "We have no space for anyone else. Unfortunately, the only option may be that we have to go to the street with any new offenders."

McLane said two sex offenders finishing their criminal sentences are due to arrive in the program in the next week, and more than a dozen more are to enter the program by the end of August. All beds are now full, she said, and the state must find another 140 beds by August because two halfway houses have notified the agency they no longer will house the offenders.

"We've got a crisis on our hands," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, a member of the Finance committee. "This is as big a screw-up as I've seen in all my years up here." ...
McLane said a bidding process for housing twice yielded nothing last year. And a statewide search of closed state youth lockups and adult prisons, even other empty state facilities, so far has come up empty.

"I've looked at 130 sites. Nothing is available," McLane told the House committee, noting that most communities do not want the convicted sex offenders moving in.
AND MORE: From the Texas Tribune.

Wednesday, February 18, 2015

If Lege can pay $735 million for border boondoggle, why can't they scrounge $220 million from the couch cushions to eliminate Driver Responsiblity surcharge?

The 84th Texas Legislature should be the time and place to finally eliminate the Orwellian-named Driver Responsibility surcharge, that bane of low-income drivers which has taken driver licenses from more than 2 million Texans for nonpayment, more than 1.3 million of whom remain unlicensed. Texas drivers owe billions in unpaid surcharges, most of which no one believes can ever be collected. All of these are folks who've already paid their traffic tickets but were then hit with an extra, three-year civil penalty that most Texans aren't even aware exists until it's assessed against them.

Many Texas legislators by now are keenly aware of the problem, and if they're not, their staffers working constituent service are. Plus, this year the state enjoys billions in extra revenue (though admittedly there are many state needs competing for the money). So if there was ever a time in recent memory when it might be politically feasible to get rid of the program, on its face this would appear to be the year.

Presently the Driver Responsibility surcharge sends about $55 million per year to Texas trauma hospitals and a like amount to the general revenue fund. So if legislators want to abolish it, they must find at least $220 million to fill the budget hole.

That sounds like a lot until you realize Gov. Greg Abbott yesterday proposed to spend $735 million on redundant border security - approximately triple what the Lege budgeted in the last biennium. Abbott wants to add 500 DPS troopers to the state's border contingent and keep the National Guard there until they're fully deployed.

So if it's that easy to find an extra half billion to tack onto border security spending, it should be possible to find $220 million, even if it meant deploying 300 troopers to the Valley instead of 500. But really, even that tradeoff isn't necessary. The state has extra money beyond the governor's border security promises, if only the Legislature and Greg Abbot prioritized the surcharge issue as much.

The state gains virtually nothing from border deployments but a nine-figure budget line item - the National Guard aren't really allowed to do anything and DPS' roadblock program got shut down and is unlikely to be authorized by the Legislature. So really all they can do is drive around giving traffic tickets and hoping they inadvertently stumble across a drug runner, as though there aren't other parts of the state which could use help from DPS with traffic enforcement. The Texas border was the safest area of the state before DPS ever began the "surge," so it's hard to credit calm in the area with any great state success.

I get that the $735 million has more to do with primary politics than public policy. But I see no good reason legislative budget writers couldn't make it $515 million, spend the other $220 million to wipe out the Driver Responsibility surcharge, and still get to claim in 2016 that they sufficiently thumbed their noses at President Obama. In the meantime, they can solve a huge problem for 1.3 million Texas drivers without licenses and millions more suffering under the yoke of onerous, harmful, counterproductive, and arguably unconstitutional civil surcharges.

Public safety wouldn't be harmed at all - in fact arguably it would be improved - and legislators seeking re-election would have the added benefit of having performing a massive mitzvah for a millions of surcharge-owers and the 1.3 million who've lapsed.

Either staff metal detectors at capitol entrances or discard them

The Texas capitol was swamped with visitors yesterday but, inexplicably, there is still only one metal detector being operated at each of the four public entrances, resulting in large, backed-up crowds waiting to get in. At each security checkpoint, one or two more metal detectors stand idle while three staffers, including two uniformed DPS troopers, stand by to monitor bags in the X-ray and pass a wand over any unfortunate, harried soul at whom the machine beeps.

When one asks why they don't operate the dormant metal detectors to process the backed up crowds more quickly, one is told DPS doesn't have sufficient staff to cover the others. Of course, DPS is sending hundreds of troopers to the border for our pointless "surge." (Gov. Abbott yesterday said he wants to add 500 to their number and triple the amount spent on that misbegotten misadventure.) So there's money available for troopers when it's a priority. Plus, I'm not sure why the job requires state troopers, anyway;  a trained chimp could operate the wand.

To make matters more absurd, there are Texas prison units which do not have metal detectors at their entrances. If DPS isn't going to staff the extras in the capitol, maybe they should send them to TDCJ!

For generations before 2010 there was no metal detector or bag searches when you entered the Texas capitol, day or night, either in session or in the off season, and I for one considered it a point of pride. (BTW, let me renew Grits' kudos to former Governor Perry for voting against their installation at the time.) The security protocols for visitors at capitol entrances, to me, seem cowardly, wasteful and, increasingly, impractical. They were created to combat an over-hyped threat - inflated egos aside, most of our state politicians aren't really important enough to shoot - and now the blockade remains up more out of habit than real concern.

The State Preservation Board should either fully staff metal detectors at capitol entrances or get rid of them altogether. Personally, I don't believe Texans or legislators would be one iota less safe in their capitol if they decided to go the latter route.

Tuesday, February 17, 2015

Roundup: Jail foibles, judicial elections, border security and bitemarks

Here are several items that merit readers' attention while your correspondent is focused elsewhere.

Monday, February 16, 2015

Don't release inmates directly from solitary to free world

On UT-Austin's website today, a short essay on solitary confinement by Octavio Martinez Jr., executive director of the Hogg Foundation for Mental Health, opened thusly:
Of all the statistics that point to an urgent need to reform the use of solitary confinement in Texas prisons, there’s one that is most striking: The Texas Department of Criminal Justice released more than 1,200 people directly from solitary confinement back into Texas communities in 2013.

Imagine for a moment languishing alone in a 60-square-foot cell for 22 hours a day, for months or even years. Then one day, suddenly you’re left to successfully re-enter society.

This practice needs to stop. 
The article concluded:
For too long solitary confinement has been deployed as a routine disciplinary measure, rather than as an extreme practice reserved for rare circumstances. This needs to change.

Among other reforms, we should better train our correctional officers to work with people with mental health issues. We should have an incentive program that allows prisoners in solitary to earn their way, with good behavior, back into the general population. And we should ban releasing people directly from solitary confinement back into the community.

In recent years, the Texas criminal justice system has begun to tilt the balance back toward rehabilitation for all but the most violent offenders. In the same spirit, we are overdue for a far-reaching, but entirely common sense, rethinking of the way that solitary confinement is used in our prisons.

Sunday, February 15, 2015

Accomplice witness rule protects against false convictions

Grits fails to understand the logic behind state Sen. Joan Huffman's bill to eliminate the accomplice-witness rule - which requires corroboration to secure a conviction based on the testimony of an accomplice - in human trafficking cases. Have we not seen enough actual innocence cases in Texas without authorizing convictions based solely on the word of a member of a human trafficking ring? God knows none of those guys might ever have an incentive to lie in exchange for immunity.

Saturday, February 14, 2015

Trust us, we're the government: Most DAs won't release lists of non-credible police officers

Kudos to Eric Dexhemier and Ciara O'Rourke at the Austin Statesman for undertaking an important investigation (Feb. 14) into police officer misconduct so severe that prosecutors can no longer use the offenders as witnesses in court cases. Unfortunately, their most important finding is that most such misconduct remains shrouded in official secrecy, veiled by dubious Attorney General opinions holding that the public cannot know which of their LEO employees are so discredited that prosecutors won't rely on their work. Their story opened:
Hundreds of law enforcement officers across Texas have such checkered histories that prosecutors have vowed to refuse cases brought by them — or, at the least, feel legally compelled to inform defense attorneys that the officers’ histories of dishonesty may help their clients.

But, for the most part, you can’t know who those cops are or what they did, even though an American-Statesman investigation found that they have resulted in the dismissal of dozens of criminal cases.
Here's their description of the project:
Beginning last summer, the newspaper asked each of the state’s criminal district attorneys for copies of their so-called Brady lists, as well as letters they had sent to law enforcement agencies alerting them of local officers whose credibility was so shaky that they could not be used in court as a witness. Many smaller, rural prosecutor offices, especially, said they kept no list of suspect police officers — at least not formally.

A number of elected prosecutors simply didn’t respond, ignoring state open records laws.

Several released their letters and lists without restriction. Ellis County District Attorney Patrick Wilson produced seven letters in which he said he would no longer accept cases from named officers.

Then-Dallas County District Attorney Craig Watkins compiled a spreadsheet of local police officers whose histories of falsifying documents or questionable behavior might compromise the credibility of their testimony. There are 192 officers on it, listed alphabetically. ...

A handful of prosecutors agreed to disclose only the total number of suspect police officers in their jurisdictions. Bexar County’s list has 65; Denton County has 39.

Many larger offices — including Travis County District Attorney Rosemary Lehmberg’s — fought the newspaper’s requests to release any information, arguing to then-Attorney General Greg Abbott that their records of officers with dubious credibility should not have to be released because they are internal law enforcement communications and thus exempt from Texas open records laws. Those included Harris, Lubbock, Galveston, El Paso, Tarrant and Webb counties.
The Attorney General sided with law enforcement opacity on this question, but IMO that's a tremendously broad reading of Sec. 552.108 of the Public Information Act and the Statesman's attorneys would do well to sue to acquire these records. First, I think the recalcitrant prosecutors and the AG are legally in the wrong. Second, these records would provide fodder for potentially dozens of stories going forward that would make litigation worth the bang for the buck.

In the meantime, the Statesman should make public the records it did receive - particularly where prosecutors named names - and provide comprehensive, county by county totals of the number of officers on local DAs do-not-testify lists.

For cities which have adopted the state civil service code, the AG opinion lards on additional confusion regarding prosecutors and Brady disclosures when it comes to police misconduct. In most Texas law enforcement agencies, police disciplinary files are public records. But in about 73 agencies which have adopted the civil service code under chapter 143 of the Local Government Code, those disciplinary records are confidential, even to the local DA's office. So in those jurisdictions, prosecutors can't even know about most police misconduct. And now they've convinced the AG they don't have to disclose it to the public even when they do know an officer can't be trusted.

Here's the second part to Dexheimer and O'Rourke's investigation.

Friday, February 13, 2015

Education vs. prison costs, the Imprisoner's Dilemma, the Year of the Woman DA, Cornyn pushes federal sentencing reform, and other stories

Here are a few tidbits to chew on while Grits' attentions are focused elsewhere.
Finally, here's a powerful gif demonstrating the costs by state to educate a child vs. incarcerating an adult:


Thursday, February 12, 2015

TDCJ settled discrimination suit by former flak, Michelle Lyons

The Texas Department of Criminal Justice recently settled an employment discrimination lawsuit filed by its former Public Information Officer, Michelle Lyons, who alleged retaliation by her superiors for passing along public information to bloggers as well as MSM reporters. Upon hearing news of the settlement, Grits emailed Lyons who responded with the following comments:
We did indeed settle so the saga is (mostly) over. Basically, after the Fifth Circuit's ruling [see Grits coverage], TDCJ called for a settlement conference. We agreed upon an amount and they wrote the check. 

The only thing still being disputed is a neutral employment letter. As part of the settlement, I asked that they write a letter stating my years of service should I ever again to decide to pursue a job with the State of Texas. In the initial draft, they made no mention of my more than five years as director of the Public Information Office and so I asked them to update it. I'm told that Bryan Collier doesn't want to do that - he only wants to include the salary and pay grade I was in after my demotion. I am not sure why, other than it being a control issue and attempt to get in one last jab. 

Beyond that, I am extremely happy to be able to put this behind me, but still am troubled that the two individuals who perpetrated the discriminatory actions against me - namely Brad Livingston and Bryan Collier - remain at the helm of the agency. If they wanted to get rid of me, they could have done so without drumming up false allegations and then applying the rules only to me. 

I hope our state leadership takes a hard look at this and other similar cases and determines that these individuals are not acting in the best interest of TDCJ or the State of Texas as a whole. It's time for them to step down and allow new leaders to repair the damage they have caused, restoring agency morale. Giving them another significant pay raise this session is not the answer, particularly when the men and women who actually serve on the frontlines get little to nothing. 

Likewise my replacement, Jason Clark, should be investigated for perjury. He lied under oath about his own time-keeping practices and then was rewarded with a promotion. I'm sure it will never happen, but I think any journalist should be wary of the information he dispenses to them.
Ouch! Still, given what happened to her, one can understand a touch of bitterness in Lyons' attitude toward her former employer. Congratulations to Michelle on her victory.

Wednesday, February 11, 2015

Harris DA: Delay pleas on drug cases till lab results are in

Reacting to numerous drug cases where defendants pled guilty to get out of jail and crime labs later returned results saying they'd never been in possession of a controlled substance, overturning their convictions based on "actual innocence," Harris County DA Devon Anderson recently announced a new policy in which prosecutors can no longer agree to a plea in such cases unless final results are back from the crime lab. The only exception is that "a defendant housed in jail [may] receive a term of community supervision with no additional jail confinement as a condition of the community supervision." Here are three, notable discussions of the new approach:
There are a lot of moving parts to consider so I understand Murray Newman's pessimistic view that the policy is unworkable. If lots of low-level drug defendants fill up the jail because they can't make bond (and Harris judges notoriously issue few personal bonds), or if court dockets expand significantly beyond their already very high levels, it's easy to see how there may be pressure on the DA to do things differently.

If local judges would agree to issue personal bonds to these defendants while they await crime lab results, that would make this policy work a lot more smoothly. Without that sort of tacit cooperation, though, it's hard to understand how the approach is sustainable in the long term.

OTOH, the situation described recently by former Texas Court of Criminal Appeals Judge Cathy Cochran surrounding these drug-possession innocence cases is equally untenable. She told Texas Monthly:
speaking of keeping people out of jail, I really think the law needs some help with pre-trial bail, letting people out before the case is sentenced. We’ve had a lot of cases recently where we’ve granted relief because here’s somebody arrested for possession of cocaine or meth or whatever and they plead guilty because they’ve got a job or a family or they just can’t stay in jail for the next six months before trial; they don’t have enough money to make bail, but they plead guilty. Then sure enough six months later the analysis on the drugs comes back and guess what? It’s not a drug.  
There aren't a lot of good answers here. Our friends at the prosecutors' association have suggested boosting crime lab funding, but throwing money at the problem won't change the structural dysfunction created fundamentally by high case volumes and unreasonable bail policies.

Grand jury reform: Beyond eliminating the pick-a-pal system

The Houston Chronicle's Lisa Falkenberg - whose reporting on conflicts of interest in Houston grand juries involving shootings by police helped launch the current effort to end the pick-a-pal method of selecting grand jurors - has published an op ed (Feb. 10) articulating what, in her view, grand jury reform must look like beyond random selection to solve problems witnessed from H-Town to Ferguson, MO. The column concluded:
A random system isn't magic fairy dust that will fix everything. Choosing our grand juries the way we choose trial juries will likely produce fairer panels with fewer biases. But, naturally, they will also be less informed about the system, and about their rights and duties.

More education is needed. Harris County provides an informative orientation, from what I've gleaned from agendas and interviews. But it's lacking in the perspectives from the defense, from groups like the Innocence Project, or from exonerees themselves.

"I get about 10 minutes. There's only so much I can cover," said Alex Bunin, Harris County's chief public defender.

Grand juries could also benefit from a staff attorney, or some kind of independent legal adviser who doesn't have a dog in the hunt.

The impenetrable shroud of secrecy is another issue lawmakers should keep in mind.

While I think grand jurors' oath of secrecy is still appropriate in most cases, judges need more explicit discretion to allow for exceptions, such as releasing witness names or transcript excerpts when appropriate. District attorneys need the same guidance.

Lastly, critics argue that a random system still won't result in diverse grand juries because many folks can't get off work to serve. I agree that grand juries will always skew older. Retirees simply have more time. But the system need not be so onerous on younger working folks. The law should make it clear that jurisdictions can get creative with the number of days and hours that grand juries can meet.

Why not a Saturday grand jury, or one that meets in the evening?

Law enforcement officials who advocate for reform deserve applause. And Texans deserve that their lawmakers finally get it right.

Tuesday, February 10, 2015

What jurors need to know during sentencing

Recently retired Texas Court of Criminal Appeals Judge Cathy Cochran told Texas Monthly that jurors should be informed how much prison sentences would cost taxpayers, Grits noted yesterday. That got me thinking about what else jurors might be usefully told to better inform their decision making during the punishment phase.

To me, perhaps even more probative than the cost of a prison sentence (which in the context of government budgets is a bit of an abstraction, anyway), jurors should be informed of the lowest plea bargain offered by the prosecution to the defense pretrial, giving them a baseline to consider for the low end of the punishment range.

That simple improvement would substantially mitigate the "trial penalty" which has radically driven up plea bargain rates in the modern era. If jurors knew that the prosecutor before trial believed that penalty X was sufficient, the temptation to punish a defendant with 6X might be more easily avoided.

Public safety arguments for arresting pot smokers eroding

One of the main arguments trotted out in Texas by opponents of legislation to reduce penalties for personal-use marijuana possession (mainly police union reps) is that there's no reliable way for police to detect stoned drivers on the side of the road the way there is for drunk ones. That's true to an overstated extent, for the moment (even as I write this, technology advances, and observed impairment during roadside sobriety tests still would merit arrest). But it doesn't justify arresting every driver with marijuana in their bloodstream as potentially impaired because pot remains detectable in the system long after impairment subsides. Such are the implications of a federal report described by Christopher Ingraham under the Washington Post headline, "Stoned drivers are a lot safer than drunk ones, new federal data show."

His article opened, "A new study from the National Highway Traffic Safety Administration finds that drivers who use marijuana are at a significantly lower risk for a crash than drivers who use alcohol. And after adjusting for age, gender, race and alcohol use, drivers who tested positive for marijuana  were no more likely to crash than who had not used any drugs or alcohol prior to driving." That could be a game changing pronouncement. (The story included the remarkable chart at right.)

It's been extraordinary how rapidly public opinion has shifted on marijuana regulation. Legalized pot in Colorado, Washington and elsewhere transformed the terms of debate both nationally and in Texas. And myth busting research like this contributes to a more honest, evidence-based debate over these sorts of once-taboo topics.

That said, this news shouldn't be taken as license to immediately go smoke and drive. Ingraham's column concluded:
So, should we all assume that we're safe to blaze one and go for a joyride whenever the whimsy strikes us? Absolutely not. There's plenty of evidence showing that marijuana use impairs key driving skills. If you get really stoned and then get behind the wheel, you're asking for trouble.

What we do need, however, are better roadside mechanisms for detecting marijuana-related impairment. Several companies are developing pot breathalyzers for this purpose.

We also need a lot more research into the effects of marijuana use on driving ability, particularly to get a better sense of how pot's effect on driving diminishes in the hours after using. But this kind of research remains incredibly difficult to do, primarily because the federal government still classifies weed as a Schedule 1 substance, as dangerous as heroin.
Bottom line, impaired drivers should be arrested and taken off the road whether they're drunk, stoned, or high on prescription drugs. But the argument that cops must arrest every pot smoker because they might drive impaired doesn't jibe with reality or the data reviewed by the feds. As a general rule, there's no greater public safety benefit from arresting and jailing a pot smoker than from giving them a Class C ticket or a civil citation.