Monday, September 15, 2014

Deputy seeks sex offender dick pics

A Sheriff's deputy in Wise County has been arrested in a bizarre incident. Sgt. Chad Hightower told sex offenders the state now required him to photograph them nude. He even told one fellow he must achieve an erection for the photo shoot, which took place in the police impound yard. Unreal.

Apparently similar photos were found on the deputy's camera involving other sex offenders, which to me indicates how easily this powerless population may be manipulated and abused. They've been stripped of so many rights, subjected to so many degradations, that it's near-impossible for a layperson to judge the legitimacy of such demands and requires tremendous courage to confront abuses.

Why Austin property taxes are so high

Austin pays our cops too much, has too many of them, and most of our city council is in the pocket of the police union. So thanks to Bill Spelman and Laura Morrison for at least trying to inject reason (and math) into the city's dysfunctional budget discussions. Reported the Austin Chronicle:
"public safety" (police, fire, EMS) will consume 70% of next year's $854 million GF budget (even excluding municipal courts), with APD alone representing 42%. Parks and libraries (generally cut first in lean times) together consume 13%; and Health and Human Services (contributing at least partly to "public safety") is another 6%. That's quite nearly everything – and it also bears emphasis that the public safety portion continues to grow, a trend that is literally unsustainable.

Unless, of course, we're prepared eventually to spend our money on police, fire, and emergency services, and nothing else. Failing that, Spelman's hoping that come 2015, at least some of the incoming Council members will realize that while public safety might be a sacred public obligation, public safety spending is not necessarily a sacred cow.

Texas' mandatory blood draw statute on DWI under fire

Texas' warrantless blood draw statute has been challenged and in some cases declared unconstitutional by intermediate state appellate judges in the wake of the Supreme Court's 2013 McNeely decision.  Tyler's 12th Court of Appeals became the latest to contend "the implied consent and mandatory blood draw statutory schemes found in the transportation code are not exceptions to the warrant requirement under the Fourth Amendment."

Another pro-Fourth Amendment opinion from a Texas appellate court on the topic came in July from the Fourth Court of Appeals in San Antonio, ruling that "warrantless searches are presumed unreasonable and must be justified on a case by case basis."

The SA Express News editorialized recently that the Court of Criminal Appeals should pick up a case to clarify the issue, and at some point they surely will. But if they go against the lower courts and uphold the current statute, we might see the issue challenged again at SCOTUS.

Crime reduction rates show little link to incarceration

The justification for mass incarceration has always been public safety. But this new analysis from the Pew Charitable Trust shows that "higher threats of incarceration don't actually deter criminal activity." Indeed, states which reduced incarceration rates saw similar or even greater reductions in crime from 1994 to 2012 than those that expanded their number of prisoners. For example, New York State reduced its incarceration rate the most over this period (by 24 percent) but also saw the largest reduction in crime. Meanwhile the state with the greatest rise in incarceration rate (percentage-wise) was West Virginia, which expanded its prison population by 195 percent while it was the only US state to see crime INCREASE over this period.

RELATED: On my "to read" list is a new, seemingly exhaustive analysis by the National Academy of Sciences (published in May) titled "The Growth of Incarceration in the United States: Causes and Consequences" (pdf). It's a fat tome but delves deeply into the substance of why crime reduction and mass incarceration seem at best tenuously linked and explores other theories and factors that may explain the counter-intuitive data.

Sunday, September 14, 2014

Deaths in custody near-daily events in Texas

According to this list on the Attorney General's website, there have been 3,680 peole who've died in custody of state and local law enforcement in Texas since 2005, which seems like a remarkable number - roughly one per day. Nearly half the deaths happened in TDCJ units. Here's an excel file with a list of the deceased.

Lyons' wrongful termination suit vs. TDCJ reinstated

Former TDCJ flak Michelle Lyons saw her wrongful termination lawsuit against the agency reinstated last week after the 5th Circuit Court of Appeals overturned a summary judgment ruling by the trial judge. Readers may recall Lyons was accused of lying on her time sheets. But, reported the Huntsville Item (Sept. 10):
The circuit court said the lower court and TDCJ did not mention evidence that could have led a jury to favor on Lyons’ side. That evidence was a statement by Lyons’ then-supervisor Larry Fitzgerald, who retired in 2003.

“I explained to Ms. Lyons that since she was an exempt employee she was not eligible for overtime,” Fitzgerald said in part of his affidavit. TDCJ said Lyons’ inaccurate timesheets led to her demotion in 2012. “Therefore, it was not necessary for her to track her hours to the minute on a day-to-day basis. I also explained to her since she was an exempt employee it was not necessary for her to work a set shift.”
Fitzgerald explained that this was because of the erratic hours public information officers worked. Rather than minute-by-minute timekeeping, Fitzgerald told Lyons she was responsible for working a minimum of 40 hours per week and to mark her records for “eight hours in the office per day.”
The circuit court said that a “reasonable jury,” along with evidence showing her co-worker also failed to follow the timesheet policy, could conclude that public information officers were an exception to the rule. The court said that should’ve been debated by a jury.
If proven true, the court also said that could be seen by a jury as the “selective application of a facially neutral policy.” In other words, if the policy was equally applicable to all employees as TDCJ claimed, why were public information officers treated differently and why was Lyons treated differently than her co-workers?
But the court also said there is a factual question as to whether the timesheet violations were “the actual reason for her demotion or a pretext, TDCJ was not entitled to summary judgment.”
On the final question, there's very little doubt Lyons' firing over time sheets was mere pretext. She was public information officer at an agency which over the years has become more insular and opaque and, at root, would prefer the public had as little information about it as possible. As far as I can tell, she was fired for doing her job. Now perhaps a jury will get to decide. Or perhaps TDCJ will settle to prevent Ms. Lyons from taking the stand and revealing where all the (metaphorical) bodies are buried.

US Attorney in DC to create conviction integrity unit

It's always nice to see good ideas spreading. The US Attorney in Washington, D.C. is creating a conviction integrity unit modeled on Dallas DA Craig Watkins successes in Dallas and a similar unit in New York. Reported MyFoxDC (Sept. 11):
U.S. Attorney Ron Machen has decided to take a bold step in creating a unit that will investigate cases his prosecutors have already taken to court. Cases in which troubling questions may emerge post-conviction like the discovery of DNA, a bad witness or even a false confession.

Over the last four years, the U.S. Attorney's Office has investigated more than a hundred cases in which hair and fiber analysis played a role in convictions.

Five men had their cases thrown out when the evidence used against them turned out to be false. The latest being Kevin Martin, who served time for a murder he did not commit.

"Anytime that happens, it's a prosecutor's worst nightmare,” said Machen in an interview Thursday. “Our job, our mission is to punish the guilty, but protect the innocent, and if innocent individuals have been wrongly convicted, it's our job to do the right thing.”

So the District's top prosecutor has designed a unit that will be staffed with a veteran assistant U.S. attorney, who along with defense attorneys, will look at cases that have developed troubling questions after defendants have been found guilty.

Saturday, September 13, 2014

Prosecutors withheld evidence in shaky Dallas murder convictions

Two Dallas men convicted of the 1999 murder of a Dallas pastor are seeking to be declared innocent, or at least receive a new trial, "on the basis of new DNA evidence and a trial they say was tainted by false evidence knowingly presented by prosecutors." Reported the Dallas News, "the two men were convicted on testimony from jailhouse informants and an unrecorded confession."

Whether or not the DNA proves them innocent, it's pretty clear prosecutors withheld exculpatory evidence. When the DA gave attorneys with the Innocence Project of Texas and the national Innocence Project their case file:
attorneys found letters from the inmates who had testified that they’d heard the two men admitting the murder.

During their court testimony, the informants said they had not been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the state in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while “insisting” to jurors “that no such discussions with these informants had ever occurred.”

The two jail informants have now told the defense attorneys their testimony was false, the filing says.
The Michael Morton Act passed in 2013 required prosecutors to make such evidence available to the defense before trial, but clearly to deal with older cases there should probably be some sort of post-conviction discovery available in habeas proceedings. If Dallas DA Craig Watkins' office hadn't voluntarily opened up its files in this case, the underlying prosecutorial misconduct would never have been discovered.

It's also worth mentioning that the original case relied heavily on jailhouse informants, but if the case were retried today that testimony would have to be corroborated. Texas law didn't include such a requirement until 2009 when state Sen. Juan "Chuy" Hinojosa passed a corroboration mandate for jailhouse snitch testimony.

Friday, September 12, 2014

In which states are men most likely to murder women? (TX ranked 16th)

In the wake of a national frenzy over the video of an NFL star punching his wife, we learn that Texas ranked 16th in the number of females murdered by men in single victim/single offender homicides, according to a new report by the Violence Policy Center titled, "When Men Murder Women" (pdf, see Appendix 1, pp 9-10). Alaska topped the chart at 2.57 such murders per 100,000 women, followed by South Carolina (2.06), Oklahoma (2.03), Louisiana (1.92), and Mississippi (1.89). The lowest rate was in New Hampshire at .30 per 100,000 women.

Based just on the raw numbers in this report, Texas had the second highest total number of such killings after California, which makes sense since they're the two most populous states. In 2012, California had 18.4% more women murdered by a single male offender than Texas - 212 compared to 179. But because the Golden State's population is so much greater, California's per-capita rate is lower - 1.11 per 100,000 women in 2012 compared to 1.37 in Texas (i.e., Texas' per-capita rate is 23% higher than California's, which was tied for 27th).

Sixteenth isn't great - New Jersey is ranked 33rd, for example, and the per-capita rate there is only .90 per 100K. But this is one list where I'm relieved to find my home state isn't leading the pack.

Via the Texas Legislative Reference Library.

Thursday, September 11, 2014

Debunking weird cop claim that warrants already required for cell-phone location data

On Monday, Eric Nicholson of the Dallas Observer followed up this Grits post with his own reportage, including quotes from your correspondent, regarding the (to me, non)debate over whether warrants are required under current Texas law for police to access historical cell-phone location data.

For some reason, law enforcement interests at the capitol are telling legislative staff that warrants are already required because of the Stickland/Dutton amendment (based on a bill first suggested by the Texas Electronic Privacy Coalition) which required a warrant for cloud-based email and other content. But the legislation didn't reach location data nor other "metadata," as the term has been popularized post-Edward Snowden.

Law enforcement interests took a completely different position when the two bills were in play in 2013. Back then, I can say from first-hand experience, the cops were willing to acquiesce on warrants for email and cloud-based content. But they fought tooth and nail against HB 1608. They ultimately convinced the authors of the bill to which Hughes had amended it - state Sen. John Carona, who lost his primary to Senator-elect Don Huffines, and Rep. John Frullo, who is returning - to strip Hughes' language out of the final version that passed.

So the Legislature did not change the law, which presently allows agencies to get location and other metadata under lesser federal standards or even a subpoena, as is done by the Department of Insurance according to the agency's testimony to a Texas House committee last year.

As the Grits and Observer posts point out, the cops' stance also contradicts recent, on-point caselaw. In Ford v. State, a Fourth Court of Appeals (San Antonio) case delivered in August which found there was no warrant requirement because of the Third Party doctrine. See pp. 16-28 of the opinion for the court's reading of current Texas law on cell-phone location data, which jibes pretty closely with past appellate rulings. (The 14th Court of Appeals in Houston ruled similarly last year in Barfield v. State.) The courts aren't going to fix this and the appellate judges are telling us the Legislature hasn't done so either, yet. No matter what law enforcement is saying to legislative staff, the Stickland/Dutton amendment simply did not reach cell-phone location data; Ford and Barfield make clear that that would require further legislative action.

In many ways, I'm glad TXEPC, of which I'm a proud member, launched our campaign to require a warrant for cell-phone location data in Texas nearly a year before the Edward Snowden revelations. The 107 joint and co-authors who signed onto the bill in the House weren't reacting to some trendy national scandal about the NSA or the Obama Administration, but because they agreed with the concept independently, on the merits. It's true, if Snowden had come forward two months earlier, both bills would have passed instead of just one, as I told Mr. Nicholson. But if we can pick up the warrant requirement for location data (like a bowling spare) in 2015, the effort won't have been in vain. Next week's Senate State Affairs Committee hearing on electronic privacy should give us a better idea of where we stand in the upper chamber.

To prepare for his post, Eric watched the House committee hearing on Rep. Bryan Hughes' HB 1608 back in 2013 (See Grits coverage here and here, or watch the hearing yourself here beginning at the 3:37:15 mark on the video.) He observed, in retrospect: "Watching the committee hearing, it's almost quaint to watch lawmakers grapple with the notion that the cell phone in their pocket is continually transmitting enough data to give anyone crunching it a time-stamped map of their locations and habits. Snowden wouldn't bring the concept of cell-phone metadata to public consciousness for another three months."

My hope is that the warrants for location data bill gets low bill numbers and an early start in both chambers so that stalling tactics can't kill the popular legislation, as happened in 2013. There are other issues on the State Affairs Committee's interim charge list on electronic privacy that aren't as well developed, but in the case of the Hughes/Estes/Hinojosa legislation on cell-phone location data, it's been vetted through the process and is ready to move, if the leadership will allow it.

Wednesday, September 10, 2014

TDCJ's $6.8 billion budget request slants too much toward prisons

Here's a one-page summary (pdf) of Texas Department of Criminal Justice's  Legislative Appropriations Request (LAR) for FY 2016-17. There's a request for a ten percent employee raise in the exceptional items - which the Lege must specifically approve as extras - but not in the base budget. (Here's the agency's full LAR, which I haven't had time to examine yet.)

The baseline budget for the coming biennium would cost $6.096 billion in general revenue (GR) funds, $6.252 billion total. But there are several items - from pay hikes for staff to prisoner healthcare, With the exceptional items added in, including raises, the GR total would rise to $6.643 billion, and the all-funds total sums up to $6.799 billion. Here' the list of exceptional items, totaling $546.6 million, from the summary:
  • Ten percent pay raise: $235 million
  • Private prison per diems: $7.7 million
  • 250 halfway house beds: 8.8 million
  • 500 DWI treatment slots: $2.9 million
  • Repair and renovation of facilities: $60 million
  • Probation, basic supervision and treatment: $28.1 million
  • Probation, employer portion of health insurance: $11.3 million
  • Offender health care: $174.8 million
  • Reentry initiatives/transitional coordinators: $4 million
  • Mental health initiatives: $6 million
  • Treatment for remaining ISFs: $5.2 million
  • Office of Inspector General: $2.8 million
Notably, many of those exceptional items are really must-haves, particularly offender healthcare and arguably staff raises (TDCJ can't recruit vs. oil field work and many units are chronically understaffed). Heck, I wish they were asking for more re: reentry, mental health and treatment dollars. The agency always short shrifts those aspects of its mission in favor of funding the institutional side, which as you can see would gobble up the overwhelming majority of extra funds under the agency's plan.

But there are other options available to the Lege besides watching TDCJ's budget spiral ever-upward session after session. Just a few, modest updates to the sentencing structure for nonviolent crimes - adjusting property crime levels for inflation and notching low-level drug crimes down by one penalty category - would allow the Legislature to close several more prisons and use the savings to fund staff raises and offender healthcare. TDCJ will never propose that, but it's really what ought to happen.

When you have the chance to make government smaller and cost less, why not take it?

Tuesday, September 09, 2014

The rise of 'mass incarceration,' the term

Mass incarceration, the practice, has been going on for nigh on three decades in this country. But over the summer, Oliver Roeder at the Brennan Center curiously found that the phrase "mass incarceration" didn't come into popular use until more recently. Here's a summary chart (usage data from Lexis/Nexis):

Fascinating. When I searched Grits' archives, for whatever reason, I found that here, too, the first use of "mass incarceration" was in 2007. Before that, the blog pretty uniformly applied the term "over-incarceration" to the same concept. I couldn't begin to tell you where I picked up the term. By the time Michelle Alexander published The New Jim Crow: Mass Incarceration in the Age of Colorblindness in 2010, the term was in frequent use on this blog.

My guess: Perhaps the term's wider usage stemmed from 2007 congressional hearings titled  "Mass Incarceration in the United States: At What Cost?" Bruce Western used the term in a New York Review of Books article earlier that year. The earliest Grits use I can find was from February 2007 referencing the spread of immigration detention facilities. The first use of the term on the blog was actually by a commenter, Rev. Alan Bean of Friends of Justice, the month before.

¿Quien sabe? Funny how terms creep up on you. Without seeing the data, I wouldn't have guessed the usage was that recent.

Tech and transportation roundup

"I want to live in a world where a chicken can cross
the road without anybody questioning its motives."
                                                    - Neil deGrasse Tyson

Transportation laws are outdated, is the message from these recent items:
As more features of automated cars become reality, and companies like Uber and Lyft press the boundaries of available transportation options, it's becoming clear that government at all levels will have to adjust laws to fit tech in much the same way as is happening on Fourth Amendment electronic-privacy questions. The tech is forcing the issue more rapidly than government normally operates.

In Austin, police are arresting Uber and Lyft drivers even as the companies heavily promote their services, their market share is growing, and the city council considers legalizing their currently illicit but popular services.

Meanwhile, the feds are beginning to think about regulating autonomous cars just as they're about to hit consumer markets earlier than most people anticipated.

Two other pieces on autonomous cars emphasize the ethical aspects of coding such vehicles to actually function successfully in urban environments. If your car must choose in a split second which vehicle to hit - the late-model Volvo or a motorcycle with a helmet-less rider - which should it choose?

And the final item highlights a little-discussed aspect of autonomous vehicles operated by sensors: Once broadly implemented, they will generate a terrific cache of data about urban environments. Grits has discussed before how the market for wearable tech depends on finding uses for data generated by sensors, which has meant corrections applications have been some of the most lucrative in the early going. With cars, there are near-endless uses for the data beyond just operating the automobile. Who gets to use it? For what purposes? At what cost?

There are significant criminal justice implications for these tech advances, particularly automated cars. Grits finds these issues surrounding emerging technologies a fascinating example of how judgments about ethics and rights change with context. Just as the arrival of the automobile launched a decline in Fourth Amendment protections, I'm hopeful that emerging personal tech and debates over control of data may end up sparking their renaissance.

Monday, September 08, 2014

Key Texas industries heavily reliant on immigrant labor

Here's an example why the nativist outcry over illegal immigration and border security in Texas strikes me as a disingenuous, even hypocritical stance for the state to take. Construction everywhere in Texas is booming but, reported the Houston Chronicle ("Low skill jobs hard to fill as Obama considers immigration policy," Sept. 7):
About half of all Texas construction workers are here illegally, according to a report last year by the Workers Defense Project and the University of Texas. In Houston's roaring market, it's particularly tough for employers to scoop up workers. Wages have skyrocketed.

"We don't have a sustainable workforce to do what we need to do right now in Texas," said Gregg Reyes, CEO of the Houston-based Reytec Construction Resources Inc., who said seven out of every 10 of his applicants don't have proper work authorization. "We can only bid on the projects we have people for, and it's a struggle to hire folks to do the work who are legal."
The hotel and restaurant industries say they're also facing critical worker shortages and want some sort of legal status for the workforce that is already here, said Richie Jackson, who heads the Texas Restaurant Association. In parts of West and South Texas, restaurants simply don't have enough staff to stay open every day or serve all their customers, he said. Most industries with unfilled work needs "can just export those jobs. Textiles are made in China, software is created in India," he said. "We can't export jobs. We need to import workers."
And, of course:
In Texas, whose cattle ranches and cotton crops are part of its very identity, 85 percent of the agricultural work is done by people who are here illegally, the Texas Farm Bureau estimates. But as traditional migratory patterns from Mexico has slowed and border enforcement has skyrocketed in the past decade, farmers are finding it increasingly difficult to fill jobs, pitting what was long a solidly conservative element against many Republicans seeking to curb immigration.

"The workforce shortage in the agriculture industry is very real, very chronic and it's impacting our domestic food production without question," said Texas Agriculture Commissioner Todd Staples, a Republican who has pushed to overhaul an agricultural guest worker program and allow a legal conditional status for the workers who are already here.

But many Republicans oppose any form of legalization for immigrants who are here illegally and call it an unfair amnesty for people who have broken the law. They also say many Americans are unemployed and should be the priority.
As long as key sectors of Texas' economy rely on illegal immigrant labor, let's stop this nonsense about deporting millions of people - including half the state's construction workforce and 85 percent of our Ag labor - or refusing to educate their (often American) kids. Talk about cutting off your nose to spite your face!

McCraw offers weak defense of gathering all ten fingerprints from drivers

Texas DPS Col. Steve McCraw had an op ed recently (Sept. 4) in the Dallas Morning News attempting to justify the agency's decision this year to begin collecting all ten fingerprints of driver license applicants and on renewals instead of merely a thumbprint as in the past.

The Colonel claims that "the only reliable way to establish a person’s identity is to collect all 10 fingerprints," which seems an unlikely assertion at best. Think about it: Under what circumstances would collecting 10 fingerprints do a better job of establishing identity than just a thumbprint for the purposes of verifying identity for drivers licenses? If you can imagine such a scenario, please describe it in the comments. After all, somebody who enters the DL center with a severed thumb won't be allowed to swipe the bloody appendage when asked for a thumbprint at the desk.

Bizarrely, McCraw counters concerns that the fingerprints would be integrated into criminal databases, by assuring Texans their fingers will, in fact be entered into those systems:
Some have falsely stated that the fingerprint images obtained at driver’s license offices are used to search an applicant’s criminal history — but this is simply not true. The state’s Automated Fingerprint Identification System is a fingerprint identification database; it can only be accessed for investigative or statutory purposes. Without 10 prints to integrate into the system, there are major gaps in public safety that leave law-abiding citizens vulnerable to identity theft and other schemes of criminal operatives.
This argument is a red herring. Nobody has said the fingerprints would be used to run criminal histories (which can be done by name); the complaint is that they'd be uploaded into the same database as criminals, which he admits they will.

The purpose of AFIS is identifying bad guys. Entering the fingerprints of every Texas driver does nothing to protect people from "identity theft," it just means their prints will be run against prints retrieved from crime scenes by police investigators, even if they've never been arrested. State Rep. Ron Simmons, a defender of the agency on this subject, was more honest with the public on his website which openly admitted, "All applicant fingerprints are run against the Texas unsolved latent print file, which is comprised of statewide crime scene fingerprint evidence."

The Colonel also overstated the extent to which state law expressly authorized this change. In 2003, the House of Representatives had a very specific debate on whether to collect all ten fingerprints and the idea was defeated 111-26. Then in 2005, the Lege said they could collect thumbprints or fingerprints, based on the argument that someone with missing or damaged thumbs may not have prints. But stretching that to claim authority to collect all ten after the 2003 vote takes chutzpah. This is a new interpretation that does not jibe with legislative discussions at the time the law was passed.
All applicant fingerprints are run against the Texas unsolved latent print file, which is comprised of statewide crime scene fingerprint evidence - See more at: applicant fingerprints are run against the Texas unsolved latent print file, which is comprised of statewide crime scene fingerprint evidence - See more at:"

The Legislature really should step in next session to put a stop to this and order all but thumbprints expunged, which was without doubt the legislative intent back in 2003 and 2005 when the relevant statutes were passed. There could be a bill to that effect, or perhaps they could attach a budget rider forbidding the agency from spending money on their drivers license database if they collect more than one print per driver.

Clearly McCraw is feeling heat and felt the need to defend the policy, but this was pretty weak. If the Tea Party folks want to have any credibility with their small-government base, one would expect this Big Brotherish maneuver to come under attack when the 84th Texas Legislature convenes in January. There are bipartisan reasons to object to this and I suspect a coalition could be cobbled together to end it.

Corporations are people who don't go to jail when they commit crimes

Although corporations are presumed to be people when it comes to campaign contributions, per the US Supreme Court's Citizens United ruling, they are not the sort of people who go to prison when they break the law.

Por ejemplo, if you or I were found to have engaged in "illegal distribution of controlled substances," spurring a a US Attorney to publicly avow our actions were a "threat to public health and safety," one would certainly expect serious prison time. But, for CVS and HEB pharmacies, who allegedly sold drugs to an unlicensed doctor, the result was a stiff fine: "CVS Pharmacy, Inc. paid a civil penalty of $1,912,500 on Thursday, while H-E-B paid $262,500 in early August to resolve the alleged violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970," reported the Houston Chronicle ("HEB, CVS, pay more than two million in drug penalties," Sept. 5).

This pattern became apparent after the 2008 financial scandals: Crimes by corporations result in civil settlements that would never be available to  an individual defendant in lieu of, say, a plea bargain.

(On the flip side, the justice system seems to offer little recourse when corporations are victims of major crimes, only minor ones. A shoplifter, they can arrest; the hacker who steals millions of credit card numbers from Target is virtually untouchable.)

To be clear, I'm not calling for HEB nor CVS to be prosecuted further, nor for any individual in the company to face prison time. The deal is done. Perhaps instead, though, the same civil settlement approach should be available to other "people" who are not, like corporations, legal fictions designed to distance owners from personal liability? What's good for the goose ...

RELATED: From The Consumerist (Sept. 12): "How corporations got the same rights as people but don't ever go to jail."

Friday, September 05, 2014

San Antonio may criminalize giving to panhandlers

According to AP: Unable to dissuade panhandlers from asking people for money, the San Antonio police chief now wants authority for his officers to write Class C tickets to passersby who give people spare change! Problem is, asking for money is speech and, after Citizens United ruling, we all know money is speech. So First Amendment red flags abound.

Here's Texas Civil Rights Project legal director Wayne Krause's money quote in the AP story, "The idea of criminalizing people giving is both unkind and legally unsound. ... The First Amendment protects the right to ask for help. It certainly protects the right to choose to whom we give assistance."

It's great TCRP is fighting this, but it's too bad there wasn't any clergy in the room. Somebody could have quoted to the council from Matthew 25:36-47. Perhaps some of them will have time to review those passages before the ordinance comes before them next month.

Texas site of four mysterious fake cell towers: Who's using them?

Grits has discussed police use of fake cell-phone towers (or "IMSI catchers," colloquially known by the brand name "Stingrays") by police, but it turns outs cops may not be the only ones using this technology. Seventeen different fake cell tower devices have been identified around the country - four of them in Texas - by a company specializing in making secure mobile phones. CBS News quoted:
Ross Rice, a former FBI agent, [who] said it’s likely [they are] being used illegally.

“I doubt that they are installed by law enforcement as they require a warrant to intercept conversations or data and since the cell providers are ordered by the court to cooperate with the intercept, there really would be no need for this,” Rice said.

“Most likely, they are installed and operated by hackers, trying to steal personal identification and passwords.”
I wouldn't be too sure about that: Some law enforcement do have Stingrays - Fort Worth PD definitely owns one and several people have told me Houston PD does too, though I've never confirmed it. Departments must sign non-disclosure agreements when they purchase Stingrays so it's impossible right now to know which agencies have them. And Texas law does not specifically regulate the devices.

Given that, IMO most IMSI catchers the company found are likely run by law enforcement or spooks (many of the devices are located near military bases, reported Computer World).  Perhaps it's just the NSA doing their thing. The feds have even used wearable Stingray devices to covertly monitor political demonstrations. Who knows?

Still, it's notable that, while criminals can't buy the necessary equipment pre-fabbed from the Harris Corporation (Stingray's manufacturer), the tech involved isn't particularly high end stuff and there's nothing to stop someone with nefarious motives from making their own if they have the technical chops.

The Federal Communications Commission recently established a task force to study whether these devices are being misused. But Grits agrees with this expert quoted by the Washington Post that the FCC shouldn't seek to regulate the devices (let courts and legislatures do that) but to eliminate the vulnerabilities that allow them to operate:
Stephanie K. Pell, a cyber-ethics fellow at the Army Cyber Institute at the U.S. Military Academy, said the FCC should investigate not only the illegal uses of IMSI catchers but the network vulnerabilities that allow them to work.

“I think it would be prudent to assume that the Chinese government and criminal gangs don’t care if IMSI catchers are illegal,” said Pell, who has written extensively about the technology. “Ultimately if we are going to get to the root of the problem, we will have to deal with this from a network vulnerability perspective.”
Law enforcement won't like that suggestion because it would eliminate one of their favorite new toys, but technology is value neutral. An IMSI catcher doesn't care if it's used to catch crooks or commit crimes. So if cops want to stop the bad guys from using them, the tradeoff will be that they must also remove this tool from their own toolbox.

Until a technical solution is in place, Grits will continue to support laws regulating the use of IMSI catchers by government. But the safer approach would be for the FCC to require companies to fix the vulnerability and, eventually, make the issue moot.

Wednesday, September 03, 2014

Tracking First Amendment challenges to Texas criminal statutes

Mark Bennett has a nice post up at Defending People detailing the ongoing First Amendment challenges to various Texas criminal statutes. Check it out.

After Mark's victory challenging the constitutionality of Texas' online solicitation of a minor statute on First Amendment grounds, I think a lot of folks - though regrettably, not yet legislators - are taking his arguments on these questions more seriously than not too long ago. If he's right, several more Texas statutes limiting sexual-themed speech may ultimate fall, probably starting with improper photography.

Checking in with Michael Morton

Michael Morton, perhaps Texas' most famous exoneree since the Tulia defendants, has a new website promoting his book, Getting Life (Texas Monthly published a pericope here), as well as a new Twitter feed. In addition, Morton published an op-ed last month in the Dallas Morning News titled, "Prosecutors are not above the law." Check out the site; read the book; follow the feed; peruse the column.

Finally, BBC radio recently ran a piece on his case and the documentary on Morton's false conviction and exoneration that first ran on CNN, An Unreal Dream, is now available online or on DVD.

Tuesday, September 02, 2014

Court: Texas cops can access cell-phone location data without a warrant

Texas' Fourth Court of Appeals in San San Antonio recently ruled that police are not required to obtain a warrant to acquire cell-site location data from a service provider because of the Third Party doctrine.

As the prosecutors' association's weekly case summary put it, the question in Ford v. State was "Did the State violate the Fourth Amendment by acquiring from the phone company, without a warrant, the defendant’s cell phone records that revealed information (tower-pings, outgoing and incoming communication, etc.) connecting him to a murder?"

The court's holding, again from TDCAA: "No. Fourth Amendment protections are surrendered when a person exposes activities to a third party. That exposure makes the records merely business records of the phone company and not protected communications." See pp. 16-28 of the opinion for the court's reading of current Texas law on cell-phone location data.

This is important because law enforcement interests have been telling legislative staff at the state capitol that last year's changes in Texas law to Art. 18.21 of the Code of Criminal Procedure regarding cloud-based email and other content already require Texas cops to get warrants for location data. My response has been 1) it's not true, for reasons evident in the Ford opinion, and 2) if it is true, there's no harm in updating CCP 18.21 to get rid of the outdated language and make the warrant requirement explicit.

MORE: I should have mentioned, they're not the first Texas court to rule this way.

'National Grits for Breakfast Day'? Celebrate!

Apparently, today is National Grits for Breakfast Day! Who'da thought?

One might have assumed they'd have waited until the tenth anniversary of this blog's first post, which is coming up in early October, but I can't argue with the sentiment. :)

Either way, if you want to help celebrate, consider a blog donation using one of the Pay Pal buttons in the right hand column. This summer, Grits drained most of this blog's PayPal coffers as reimbursement for months of newspaper subscriptions and (to a lesser extent) open records requests. Also, I was hoping to purchase a couple of new publications on commonly covered topics to help improve both my own understanding and this blog's coverage.

If you find this site useful personally or professionally, particularly the latter, consider donating to cover the overhead. I don't mind so much the labor, but I don't like the blog to cost me money.

If you don't like the PayPal fees but want to donate, email me at and I'll send you the snail mail address to send a check.

Thanks for reading, folks, and for any blog support you can provide. And of course, happy National Grits for Breakfast Day!

Nanny-State Alert: Austin bans hand-held phone use while driving

The Austin City Council banned talking on a hand-held cell phone driving, not just texting, despite evidence from states which have enacted similar bans that such laws don't reduce accidents. Reported KEYE-TV (8/29):
California may be a good example. The state put a similar ban in place in 2008. While observational surveys show handheld use of cells phones dropped, studies showed no significant decrease in the number of accidents. One reason may be because there are a lot of other things that distract drivers, like the radio, personal grooming, and eating and drinking. Another issue is drivers' willingness to break the law if they think they won't get caught. We see evidence of that when drivers speed, or drink and drive. Despite knowing it's illegal they take a chance. This was brought up at the public safety commission meeting when this ordinance was still in the draft phase. Shupe summed up the problem, saying, "The bottom line is personal responsibility comes into play and drivers need to keep their eyes on the road, and their mind on what they're doing."

Read More at:
California may be a good example. The state put a similar ban in place in 2008. While observational surveys show handheld use of cells phones dropped, studies showed no significant decrease in the number of accidents.

One reason may be because there are a lot of other things that distract drivers, like the radio, personal grooming, and eating and drinking.

Another issue is drivers' willingness to break the law if they think they won't get caught. We see evidence of that when drivers speed, or drink and drive. Despite knowing it's illegal they take a chance. This was brought up at the public safety commission meeting when this ordinance was still in the draft phase.

Shupe summed up the problem, saying, "The bottom line is personal responsibility comes into play and drivers need to keep their eyes on the road, and their mind on what they're doing."
The new offense is a Class C misdemeanor. and only bans phone use while the car is in motion; you can still punch in numbers at a stoplight or while stuck in traffic and put the phone on speaker.

My personal belief is that careless drivers are careless in more aspects of their behavior than just cell-phone use, so this nanny-state tactic likely won't be any more effective than in the Golden State. Indeed, some states which banned texting while driving found accident rates increased because people held their phones in their laps to thwart police detection. Other studies have found that hands-free phone use while driving is as dangerous as holding a phone to your ear; it's the conversation that distracts you from the road, not the act of holding the phone.

For these reasons, Grits sincerely doubts this new law will contribute one iota to reduced traffic deaths, but it may contribute to the city's coffers when ticket revenue starts to roll in. Though no one will say so, that's the most important functional result from this new law. It probably won't make us safer but it may turn out to be a helluva revenue generator. If so, expect to see it replicated in other cities.
California may be a good example. The state put a similar ban in place in 2008. While observational surveys show handheld use of cells phones dropped, studies showed no significant decrease in the number of accidents. One reason may be because there are a lot of other things that distract drivers, like the radio, personal grooming, and eating and drinking. Another issue is drivers' willingness to break the law if they think they won't get caught. We see evidence of that when drivers speed, or drink and drive. Despite knowing it's illegal they take a chance. This was brought up at the public safety commission meeting when this ordinance was still in the draft phase. Shupe summed up the problem, saying, "The bottom line is personal responsibility comes into play and drivers need to keep their eyes on the road, and their mind on what they're doing."

Read More at:
California may be a good example. The state put a similar ban in place in 2008. While observational surveys show handheld use of cells phones dropped, studies showed no significant decrease in the number of accidents. One reason may be because there are a lot of other things that distract drivers, like the radio, personal grooming, and eating and drinking. Another issue is drivers' willingness to break the law if they think they won't get caught. We see evidence of that when drivers speed, or drink and drive. Despite knowing it's illegal they take a chance. This was brought up at the public safety commission meeting when this ordinance was still in the draft phase. Shupe summed up the problem, saying, "The bottom line is personal responsibility comes into play and drivers need to keep their eyes on the road, and their mind on what they're doing."

Read More at:

Monday, September 01, 2014

Reflecting on Rick Perry's criminal-justice vetoes

Grits has suggested in the past that Texas Gov. Rick Perry has signed more criminal justice reform legislation, arguably, than any sitting U.S. governor. And it's true.

It's also true, though, that some of his vetoes have been particularly damaging to the reform cause. The Austin Statesman performed an an analysis of Perry's vetoes and found that 38 of his 301 vetoes have been in the criminal justice realm. Some I agreed with; many IMO were misguided. Several, regrettably, were bills I've worked on. C'est la vie. Anyway, here are what I consider Perry's worst criminal-justice related vetoes:

Maximizing police arrest powers
Photo via The Economist
SB 730 (2001): After the US Supreme Court ruled in Atwater v. City of Lago Vista that Texas police officers could arrest a Central Texas soccer mom for a Class C misdemeanor traffic offense (in this case, a seat belt violation), the Lege passed bipartisan legislation (Chris Harris in the Senate, Senfronia Thompson and Robert Talton in the House) to forbid arrests (with four limited exceptions) for offenses where the ultimate potential penalty would not include incarceration. Perry vetoed that bill and the extra authority he granted peace officers that day in 2001 has been a source of significant mischief, not to mention additional jail overcrowding pressure, in the intervening years.

There was a second veto related to the Supreme Court's Atwater ruling in 2003, though regrettably the Statesman's database misidentified the bill. SB 1597 by Hinojosa was a watered down version that would have required police departments to enact written policies regarding when their officers may effect arrests for Class C misdemeanor violations. Perry vetoed that, too. And his threat of vetoing related bills essentially closed the issue for a decade after the 2003 compromise bill went down.

If the grassroots wing of the GOP had been in ascendance back in '01 and '03 the way they are today, I seriously doubt Perry would have vetoed these bills. But back then the former Democrat was more beholden to the police unions than to small "l" libertarians in his party base. 2005 represented the last session when the governor appeared to openly carry water for them and these "Soccer Mom Bills," as they were dubbed in the media (after the defendant in the Lago Vista case), were high on the unions' hit list in the years following the turn of the century.

Nixing restraints on police search power at traffic stops
Another unfortunate Perry veto in 2005 nixed a requirement that law enforcement obtain written or recorded oral consent before searching a vehicle at a traffic stop unless they had probable cause, in which case they didn't need it. SB 1195 by Hinojosa was good public policy, both informing drivers of their rights and generating more and better data about the murky world roadside searches. When the Austin PD began requiring written or recorded consent, the number of so-called consent searches at traffic stops declined dramatically. This was an excellent bill and Perry's veto was one of my personal biggest political disappointments during his reign.

No to Blue Warrant relief for county jails
I know there are still Sheriffs frustrated with the governor's 2007 veto of HB 541 by Trey Martinez Fischer that would have allowed parole violators arrested on "blue warrants" (an alleged parole violation) to be released on bond awaiting revocation hearings. This is a perennial complaint from counties - that housing the parolees is an unfunded mandate from the state, which is essentially true - and the governor dashed the hopes of many a local official when he throttled this modest assistance to counties to address jail overcrowding.

Don't tell ex-prisoners about voting rights
It still sticks in my craw that Gov. Perry vetoed a bill in 2007 to provide eligible inmates with voter registration information upon release. That seemed like a small thing and his veto motives appeared transparently partisan, especially after the bill was sent to his desk by a Republican-controlled Lege.

Other Veto Errata
Perry famously line-item vetoed the budget for Tony Fabelo's old Criminal Justice Policy Council, ostensibly because Fabelo issued prison population projections that necessitated either spending on prison construction or passing bills to promote de-incarceration. I've never understood why he vetoed Todd Smith's bill exempting Romeo and Juliet relationships (four years difference or less) from sex offender registration statutes - it passed 131-12 in the House, unanimously in the Senate. Perry has also been hostile to good-time credits applied to inmates seeking parole (vetoed bills in '05 and  '07), and in 2005 he insensibly vetoed Jerry Madden and John Whitmire's comprehensive probation reform package, though he signed an essentially similar bill the following session and now takes credit for it on the campaign stump.

* * *

Grits has occasionally dared to hope that the Lege might revisit some of these topics now that we'll have a new governor in 2015.

Saturday, August 30, 2014

Saturday Link Roundup

Just to clear my browser tabs, here are a few mostly unrelated links that haven't made it into independent Grits posts but deserve readers' attention::

New reporting on TX indigent counsel to take effect

New reporting deadlines for criminal defense attorneys and counties take effect this fall when the final elements of HB 1318 take effect beginning Sept. 1. The forthcoming data will shed some new light on indigent defense caseloads, but IMO won't be detailed or probative enough to measure how caseloads relate to outcomes. Still, it's something. First,
not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission [TIDC], submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.
Then, section 6 of the bill requires that:
Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.
Then, the Texas Indigent Defense Commission (TIDC) must publish a statewide report summarizing the data by the end of the year.

Here's a short summary (pdf) of TIDC's implementation of HB 1318, a copy of the (very minimalist) form (pdf) attorneys must fill out, and a presentation (pdf) by TIDC from February on the new reporting requirements. TIDC also has produced an "optional attorney practice time work sheet" (pdf) but one (perhaps cynically) doubts many attorneys will volunteer the (slightly) more detailed data. We'll know before the new year.

Via the Legislative Reference Library. See prior Grits coverage.

Taser's business model on police body cams

Grits observed earlier this month that the most successful wearable tech businesses so far have been in the corrections industry - e.g., police body cams, GPS trackers, and alcohol monitors - and dominated by a few companies narrowly focused on law enforcement tech. I'd argued that in the wearables market, "The more significant profit potential comes when you can find ongoing, real-world uses for wearable-generated data." So I was interested to see a recent New York Times piece ("Police cameras can shed light but raise privacy concerns," Aug. 20) describing Taser International's services and fee schedule for its (relatively) new police body cam service:
In 2012, Taser began selling its most advanced body camera, the Axon Flex, which can be clipped to an officer’s sunglasses, hat, helmet or epaulets. The Flex, which sells for $599 a unit, captures a wide-angle view that is close to what an officer sees while on patrol. Other cameras, including those made by Vievu, Taser’s largest competitor, clip to an officer’s shirt or belt. Because on-body cameras also capture high-fidelity audio, watching their videos offers a strangely intimate view of police work, as if you’re playing a video game.

Throughout an officer’s shift, Taser’s camera is constantly recording what it sees. But most of its images are kept in a 30-second buffer, after which they’re discarded. The unit begins saving longer segments of video — and begins capturing audio — only when an officer double-taps a control switch.

The 30-second buffer is a way of allowing officers to essentially record events that began in the past. “Say the officer sees someone run a red light — obviously the officer didn’t know that was going to happen,” Mr. Smith said. “But once he starts recording, we go back and grab that 30 seconds before that.”

The buffer includes just video, not audio, which is saved after the officer hits Record. The video-only buffer is meant to protect officers’ privacy.

Taser’s Axon cameras are paired with the company’s online storage service,, for which police departments pay a monthly fee of $15 to $55 per officer, depending on how much storage space they use.

At the end of each shift, an officer plugs the camera into a charging dock, and all videos are uploaded to Police departments determine how long videos are retained; often retention times are related to the statute of limitations for the episodes the videos depict. Departments also set policies on who can watch the videos, and keeps an audit trail of all views.
Here's an example of what I was talking about: Not only is Taser charging a substantial sum for the camera itself, the per-officer fee generates ongoing revenue over time. Most corrections oriented "wearables" share that trait, which is why I think we'll continue to see greater market growth there in the near term than in the much-more ballyhooed wearable-tech fashion field. Many wearable apps struggle to find useful things or interesting things to do with data they generate, while corrections folks know what to do with data about their subjects - whether it's video, their location, blood-alcohol levels, etc. - and exhibit a voracious appetite for it.

In related news, Houston police chief Charles McLelland asked city hall this week "for $8 million to equip 3,500 police officers over three years with small body cameras to record encounters between law enforcement and residents as a way of improving accountability and transparency," reported the Houston Chronicle (Aug. 28). HPD had piloted the idea with 100 officers and now wants to take it department-wide.
Capt. Mike Skillern, who heads HPD's gang unit and is involved in testing the cameras, said his fellow officers act "a little more professionally" when wearing the devices.

A recent Cambridge University study of the small police department in Rialto, Calif. reported a more than 50 percent reduction of use of force incidents with officers wearing cameras and an 89 percent decline in the number of complaints against officers during the yearlong trial. 
See also a recent blog post from Paul Cassell at the Volokh Conspiracy favoring police body cams and a report published this year (pdf) sponsored by the US Department of Justice assessing research so far on their use in the field. (It concludes with a call for more research, finding that "Most of the claims made by advocates and critics of the technology remain untested.") MORE: From Ars Technica.

Thursday, August 28, 2014

Texas should fund mental health diversion instead of border surge

Here are a couple of recent stories about jail diversion programs for the mentally ill in San Antonio and Houston being touted as models (even though the latter hasn't launched yet):
The Bexar program deserves its kudos and I certainly hope the pilot in Harris County fulfills expectations. But one notices that whenever local agencies in Texas do stuff they always want their program to be a "model" for the state and nation. We do this a lot in Texas (particularly in indigent defense: "Comal County will lead the nation ..."). In this case, Bexar probably deserves the "model" moniker; Harris, not yet.

Still, usually when I hear someone tout their work as a model, I think: That's great, I hope it's true the brave new world begins at your doorstep and this or that local program changes how everybody does everything. OTOH, I'm generally more comforted to hear about tax dollars spent following models that work than attempting to forge them, which is a dicier play.

Our fundamental problem is that Texas spends too little on behavioral health care (49th among states in per capita spending) and too much of what care is delivered happens through the criminal justice system. So diversion programs are the right way to go. Indeed, when one watches the massive, pointless, knee jerk spending at the border that accomplishes nothing, it's hard not to think how much good that money would have done expanding these sorts of mental health diversion programs to other jurisdictions. These programs actually work, are cost effective, and directly make the public safer in the places where most of them live. It'd be difficult to make similar claims about Texas' border surge with a straight face.

Wednesday, August 27, 2014

Litigation heating up over summertime prison conditions: 5th Circuit may rule in Louisiana case by end of year

At Texas Monthly's website, Annie Melton reflects on the looming question: "Will a ruling on extreme conditions at the Louisiana State Penitentiary influence lawsuits pending in Texas?" She's talking about a federal court's ruling in favor of death row inmates in the Angola unit in Louisiana which may soon cause our Bayou State neighbors to "join the long, still-growing list of states that have established temperature regulations for their prisons," just like Texas requires for county jails. (See prior Grits coverage.)

The state prison system has asked the Fifth Circuit Court of Appeals, which also includes Texas and Mississippi, to overturn the decision. Their appeal "is currently at the briefing stage within the Fifth Circuit, and no ruling is expected until later this year." Many court watchers think their ruling in that suit will either govern the Texas cases or at least show which way the wind blows on the court regarding very similar claims.

Keep in mind, in 2012 the Fifth Circuit expressly allowed prison heat litigation in Texas to go forward, reversing the ruling of the trial judge and inspiring several more, similar suits at other Texas units. So, after greenlighting the Texas suits just two years ago, will the appellate court now shut those cases down or further them along with its coming ruling? Or, perhaps the court will affirm or overturn the district judge's ruling in a way that won't affect the Texas cases. ¿Quien sabe? Nothing is certain.

Still, judging from commentary from the bench during oral arguments at the Fifth Circuit in the Texas case, if I were TDCJ Chief Mugwump Brad Livingston, I think I'd be pricing air conditioners and the cost of installing and using them at dozens of Texas prison units, if not all of them. There's a decent chance that, by the time the Legislature meets next spring, Livingston will find himself facing some legislator in a committee hearing waving around a new decision from the Fifth Circuit and asking him how much it would cost.

Tuesday, August 26, 2014

Montgomery commissioner: Reduce number of pretrial detainees

More detail on Montgomery County commissioners clowning around on jail overcrowding instead of confronting its causes, mainly excessive pretrial detention, head on. Grits had discussed the situation here, then the Houston Press' Hair Balls blog (Aug. 22) added:
Montgomery County Commissioner James Noack held a meeting this week with court, jail and DA's office officials hoping to get at the root causes for the county's current predicament. The main problem, he says, is the amount of pre-trial defendants -- who are presumably innocent until proven guilty -- held in lockup.

According to the most recent numbers out of TCJS, 68 percent of those held in the Montgomery County jail are pretrial inmates. Statewide, 58 percent of county jail inmates are pretrial defendants. In Harris County, that number is 61 percent. In San Antonio, where county commissioners have made a concerted effort at pretrial diversion (like expanding specialty mental health and drug treatment courts), only 29 percent of county jail inmates are pretrial defendants.

Phil Grant, Montgomery County's first assistant district attorney, says the shuttering of the Sam Houston State University regional crime lab in 2012 exacerbated the county's jail woes. For example, the turnaround for blood analysis on felony DWI cases used to take about a week. Now, blood analysis and toxicology tests are done by the state DPS crime lab, which takes about six months, he says.

That means cases take much longer to clear. And if the defendants can't afford bail, they clog the jail for months.

Nate Jensen, the county's director of court administration, says recent years have seen an explosion in arrests and case filings as the local population grows. "Most agencies have more boots on the ground now," he said. "And if you have more police, you're going to have more instances where people...well, get caught." In 2004, about 4,000 felony cases were filed. Last year, the Montgomery County DA's office filed about 5,700.
Grits can't tell where the 29 percent figure for pretrial defendants in Bexar County comes from. I think it's wrong. Looking at the 8/1/14 county jail population report from the Commission on Jail Standards, misdemeanor, felony, and state jail felony inmates awaiting trial accounted for 57 percent of Bexar jail inmates, which is right around the statewide average. (Add the columns: "Pretrial felons," "Pretrial Misd.," and "Pretrial SJF.") In both Dallas and Travis Counties, astonishingly, 73 percent of jail inmates incarcerated on that day were there awaiting trial as of August 1.

Even so, I stand by my assessment that the number of pretrial defendants could be reasonably lowered to at least half or less of the overall jail population in Texas' larger counties.  Back in 1995, pretrial defendants made up just 30.3 percent of Texas county jail inmates. As of 8/1/14, they made up 59.5 percent of jail inmates statewide, a slight uptick from the previous month and up from 53 percent in 2008.

What's needed is to shift from bail-based pretrial release criteria to ones grounded in risk assessment tools and a system-wide cost benefit analysis. Whether someone can pay is a poor indicator of whether or not they'll show up in court. But pretrial services experts have developed pretty effective risk-assessment models that are much more probative to the key question at hand than whether some family member can cover 10 percent to a bail bondsman.

My view: Save punishment till post-conviction. These high rates of pretrial incarceration do little to further public safety and generate serious collateral consequences that in some cases do more harm than good.

Note to Brandon Wood, et. al., at TCJS: Please, PLEASE create an archive for your old monthly county jail population reports going back as long as you've got them! They're incredibly useful for historical comparison. Why not? :)

H/T: Off the Kuff.

Monday, August 25, 2014

Rick Perry seeks habeas corpus relief

Via Mark Bennett, here's Texas Gov. Rick Perry's pretrial writ of habeas corpus (pdf) asking a district judge (and ultimately the Court of Criminal Appeals) to bar his prosecution for abuse of power in the Travis County Public Integrity Unit veto scandal based on constitutional grounds. See the Austin Statesman's coverage.

For habeas buffs, this is a particularly high-profile application. Rate the odds of its success (preferably sans partisan carping in either direction) in the comments.

Companies selling government detailed location data

At the Washington Post we find an article titled "For Sale: Systems that can secretly track where cell phone users go around the globe," (Aug. 24). Here's how the story begins:
Makers of surveillance systems are offering governments around the world the ability to track the movements of almost anybody who carries a cellphone, whether they are blocks away or on another continent.

The technology works by exploiting an essential fact of all cellular networks: They must keep detailed, up-to-the-minute records on their customers’ locations to deliver calls and other services.

Surveillance systems are secretly collecting these records to map people’s travels over days, weeks or longer, according to company marketing documents and experts in surveillance technology.

The world’s most powerful intelligence services, such as the National Security Agency and Britain’s GCHQ, long have used cellphone data to track targets around the globe. But experts say these new systems allow less technically advanced governments to track people in any nation — including the U.S. — with relative ease and precision.

Users of such technology type a phone number into a computer portal, which then collects information from the location databases maintained by cellular carriers, company documents show. In this way, the surveillance system learns which cell tower a target is using, revealing his location to within a few blocks in an urban area or a few miles in a rural one.

It is unclear which governments have acquired these tracking systems, but one industry official, speaking on the condition of anonymity to share sensitive trade information, said that dozens of countries have bought or leased such technology in recent years. This rapid spread underscores how the burgeoning, multibillion-dollar surveillance industry makes advanced spying technology available worldwide.
See the Post's interactive addendum to the story.

One wonders: Are these services ever accessed by state and local law enforcement? In Texas? Perhaps this is another topic for the Texas Senate State Affairs to potentially consider when they meet to discuss their interim charges on electronic privacy September 16.

Sunday, August 24, 2014

Silly Season: When in doubt, make up stuff

Grits cannot and will not respond to every bit of campaign-related criminal justice flotsam and jetsam on this blog. The task of correcting that many errors is way too big for a part-time hobbyist blogger of my ilk. So much disastrously wrong silliness would require a small, full-time team to vet. Two examples:

Rick Perry: Terrorists at the Border
The media has lately been debunking Gov. Perry's claims that Islamic terrorists may attempt to cross the Texas border through the desert to attack our cities. But it's only his presidential aspirations that make this news. The media thoroughly debunked those absurd claims from the time Perry and others first suggested Islamic terrorists had crossed the Rio Grande in 2006. But just like now, he kept repeating them because, false or not, the meme appealed to the far-right base in the Republican Party while avoiding tougher stances, for example, on employers who hired illegal immigrants. And the fact that he stuck to his guns in the face of the "liberal media" saying he was wrong made the base happier still.

Now Perry is hoping the same "Damn the Facts" approach (Bill Maher calls such memes "zombie lies.") will work on the national stage. But by comparison to a presidential campaign, the Texas media have been lap dogs. I don't think that bush-league stuff will play once the national press corps hones in on his campaign; IMO, this is a recipe for repeating his 2012 performance, crumbling under media scrutiny when his moment in the spotlight hits. Perry famously avoided the Texas press in his latter gubernatorial campaigns, spending tens of millions on TV advertising to appeal directly to the voters. But you can't avoid fact checkers running nationwide for the presidency.

Wendy Davis: On ending statute of limitations for rape
It's bad enough that Wendy Davis, hoping to capitalize on an old Supreme Court opinion by Greg Abbott siding against a rape victim, has begun to rally for eliminating the statute of limitations for rape. Now Greg Abbott has said he favors the policy, too. So led by a demagoguing Democrat, Abbott felt pressure to follow suit and the result: A bipartisan consensus for a really terrible policy. Thanks for nothing.

To be clear: Texas has already removed the statute of limitations for rape in cases where DNA evidence matches an old rape kit [see CCP 12.01(1)(c)]. Davis is suggesting that cases with less conclusive standards of proof should also have no statute of limitations; currently it's ten years in non-DNA cases. Beyond that, how in the world is anyone supposed to prepare a defense against an alleged sexual contact from more than a decade ago? Or for that matter, to prove the event affirmatively beyond a reasonable doubt ten years later without DNA? Keep in mind, the Lege could only remove the statute of limitations for future cases; the episodes where DNA accused people who couldn't be tried were all from before the law was changed to reflect DNA advancements. To the extent this is a problem, it's already been fixed as best as the Lege can. What Davis proposed is misanthropic madness, politicizing rape in a way a male candidate probably couldn't get away with.

It's not just that this is a bad idea, it's a cynical one. Which is why it's unsurprising that her opponent issued an equally cynical "Me Too." After all, what candidate wants to appear on the same side of an argument as alleged rapists in the home stretch of an election? Especially for polling driven campaigns (rapists never poll well), these look on the surface like easy shots. OTOH, if you were looking for a candidate in this race who favored strong, substantive due process rights to avoid convicting innocent people, neither party has a thing to offer you.

Davis trying to out-flank Abbott to the right is a great example of how we got here: Too many Texas Democrats over the years have tried the tuffer-than-thou strategy and it's rarely effective. Certainly Davis won't beat Greg Abbott that way, or at all, really.

(RELATED: From Kiah Collier at the Houston Chronicle (8/22), "Experts cast doubt on Davis rape statute plan.")

* * *

I get that both these candidates face losing prospects and feel the need to swing for the fences. But regrettably, as in sports, adversity in politics more frequently reveals one's character than shapes it. What's revealed by these two dubious campaign gambits, I'm afraid, doesn't speak favorably of those in the highest echelons of the two Texas political parties.

It's going to be a long, ugly campaign season.