Prosecutors dissing the Michael Morton Act, and defending it

At the Texas District and County Attorney Association's user forum, see 24th judicial district ADA Terry Breen's embittered critique ofTexas' new mandatory open file policy for prosecutors - he's mad that he may have to give up incriminating as well as exculpatory evidence - followed by a quite reasoned response from forum regular Greg Gilleland which explains in essence why TDCAA supported a "one-sided" open file bill. Steamed Breen, "This is the most anti-law enforcement bill to come out of the legis. in memory. The fact that it was pushed by the leadership of the TDCAA makes it especially galling, and the fact that it was sold as a bill that 'all the stakeholders,' (i.e. including you and me) is even more galling." Gilleland responded:

I've had an open file policy for my entire career. Folks like my old boss, John Healey and my current boss, Bryan Goertz, mandated it. I never had a problem with it. They felt it necessary for the accused to know all the evidence against him and I have always agreed.

If you search this forum you'll find some debates from years past between myself and former DA John Bradley. In those exchanges, I argued for an absolute open file policy like I practiced with. He disagreed.

Being the son of a former prosecutor and a long time defense attorney had convinced me that abuses in closed files could only be cured by having an open file. ...

My open file policy and my copied file policy have not prohibited me in the least from obtaining big sentences for bad violent criminals over the years. It has NEVER handicapped me even when it revealed facts adverse to my case. And of course, it eliminates a plethora of appellate issues.

I really recoiled in horror when former DA and now Judge Anderson testified to the effect that he wouldn't be much of a prosecutor these days if he had to give everything to the defense and that he would lose a lot.

When I've lost, it wasn't because of the open file policy but because of the facts and the truths they revealed.

And so on. The whole thing is worth a read.  The Governor has already signed the "Michael Morton Act" so Mr. Breen is crying over spilled milk. Come January 1, 2014 it will be the law of the land.

RELATED: From the SA Express-News, "Bill requires new ethics training for prosecutors."

House amendment on cell-phone location data could get bypassed

Well privacy fans, I hope you enjoyed that pyrrhic victory while it lasted! On Monday, the Texas House of Representatives amended a Senate bill to require law enforcement to get a warrant (with limited emergency and other exceptions) to access detailed cell-phone location data about subscribers, information that some agencies like the Texas Department of Insurance currently get with only a subpoena. For a moment, hope abandoned was rediscovered and the world shined brighter.

Then yesterday the Texas Senate passed the House companion to that bill, HB 2268, without the language about warrants for cell-phone location data, though it includes Rep. Jonathon Stickland's language from HB 3164 regarding warrants for cloud-based email stored longer than 180 days. It's now up to the bill authors - Rep. John Frullo and Sen. John Carona - to decide with which version of the bill they'll move forward. Both have expressed hostility toward the amendment by Rep. Bryan Hughes even though Frullo was a co-author of Hughes' original HB 1608. The House rejected Frullo's motion to table Hughes' amendment by a whopping 126-4 margin

Still possible but time is dwindling and prospects look bleak. The House will vote tomorrow morning whether to concur in the Senate amendments to HB 2268 or to send it to conference committee. Whether the House will go that far I don't know but support for the amendment on warrants for cell-phone location data was strong. See below the jump an image forwarded by an alert reader of the House vote board passing Hughes' amendment to SB 1052 on Monday. The vote was on a "motion to table" so a red "no" vote was a vote in favor of the amendment. The handful of green lights represent votes against it.

Man bites dog: DAs support reduced drug sentences, but not in Texas

The headline sounded like news from an alternative universe but appears to be (mostly) legit: The Oregon District Attorneys Association came out in support of reducing drug sentences "as a way of curbing the growth of state prisons." Their main concession on drug sentencing was to issue a report (pdf) agreeing that penny-ante pot dealers shouldn't get automatic prison time. The Association agreed with 11 of 18 recommendations by a Governor's task force (see their report [pdf]), but balked at otherwise-consensus suggestions to eliminate certain mandatory minimums, including for some violent offenses. Notably, the main report recommended a more aggressive reduction of current drug and property-offense levels than the Oregon DAs were willing to concede.

It should be mentioned that Oregon operates under a sentencing guideline regimen that's quite different from Texas' sentencing approach. But the two states are united in a desire by their legislatures to limit prison spending growth, which is why the DAs Association made these concessions.

We've seen Texas judges plead with the Legislature to reduce sentencing categories for low-level drug possession but it's hard to imagine our current crop of DAs doing so. OTOH, TDCAA surprised me this session by coming forward with a one-sided open-file discovery deal at a time when the criminal defense bar had walked away from the negotiating table. And some of their more hard-line representatives at the Lege have softened a tad in intensity, for reasons discussed here and here.  Certainly we didn't hear the sort of weeping and gnashing of teeth over closing two prison units (if it sticks, bringing the total shuttered to three) that one would have expected back when, say, Chuck Rosenthal, Bill Hill and John Bradley were at the zenith of their power. Perhaps one day Texas prosecutors will surprise me again and follow the lead of their Oregon brethren on drug sentencing. As TDCAA's Shannon Edmonds replied when I emailed him the link and suggested as much, "Stranger things have happened."

Nuther overturned case based on Jonathan Salvador crime lab fiasco

After a brief hiatus in which several weekly "hand-down lists" came and went without the Texas Court of Criminal Appeals ruling on any more of former DPS crime-lab worker Jonathan Salvador's cases, another one came down yesterday. In "Ex Parte James Antonio Williams," a six year sentence was overturned because evidence in the defendant's case passed through Salvador's seemingly tainted custody. Admittedly Grits has been distracted so I may have missed some, but by my count that brings the total to 18 convictions overturned totaling 141.5 years worth of prison sentences so far as a result of the scandal, with potentially thousands more to come. I'd begun to wonder whether Texas' high criminal court may reconsider its sweeping rejection of all things Salvador after the breathtaking implications of its rulings became apparent. After all, the Houston-based chemist worked on nearly 5,000 cases. But Mr. Williams received relief based on the same standard as prior cases. It all looks like a mess from here but ironically we've got Yankees marveling that Texas has handled it as well as it has. Go figure.

Perusing the remains: No legal punishment for 17-year old capital murderers, several good bills still alive

There will continue to be no legal punishments on the books in Texas for 17-year old capital murderers after the Texas House of Representatives failed to get to SB 187 by Huffman on last night's floor calendar prior to the midnight deadline. Oops. Guess they'll have to charge them with "regular" murder, then, which still can get the 17-year old 99-life. Prosecutors say they will ask Governor Perry for a special session on the subject, but Grits wouldn't expect it unless one is called anyway on the budget, water, or some other reason. IANAL, but my personal view was that SB 187 did not provide enough discretion on sentencing to comply with the Supreme Court's decision in Miller v. Alabama to which the legislation was reacting.

Let's run through the fates of a few other Texas bills for which Grits has been following the end game:

The open-file bill for prosecutors, SB 1611 by Duncan/Ellis, dubbed by its authors and the media as the Michael Morton Act, has already been signed. Otherwise, there are a few good bills Grits mentioned previously which are now headed to the Governor or are about to do so:

Both chambers have approved SB 825 by Whitmire which disallows the state bar from issuing private sanctions when prosecutors are found to have committed Brady violations.

Legislation clarifying the standard by which courts judge habeas corpus writs in junk science cases, SB 344 by Whitmire, is on its way to the Governor's desk, the only recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions to make it there this year. State Rep. Sylvester Turner did a masterful job of shepherding it through the House.

SB 1003 by Carona creating a study commission related to solitary confinement received a second-reading vote before last night's headline. One more vote today and the Governor can consider it. And SB 1114 by Whitmire limiting the use of Class C tickets for school behavior violations made it all the way through the process.

Another bill headed to the Governor, SB 1238 by Hinojosa, would clarify the jurisdiction of the Texas Forensic Science Commission in the wake of a too-limiting Attorney General's opinion from 2011 solicited by former FSC Chairman John Bradley.

The only bill left with even minor potential to reduce incarceration rates by creating incentives for probationers' good behavior, HB 1790 by Longoria, was placed on the Senate intent calendar today and still has a shot. (UDATE: This passed.)

Bad wiretapping bill: Dead. Grand jury secrecy bill: Dead. Good drug policy bills: Dead. Sentencing review commission: Dead. Innocence commission bill: Dead. Bills of innocence commission opponent: Dead.

The action today shifts to the Senate side where there's a good grand-jury transparency bill on the intent calendar that still has a chance: HB 3334 by Hughes would require witness testimony to be recorded in grand jury proceedings as well as that of the defendant. (UPDATE: Failed w/o a senate floor vote.) After the Senate approved its version of HB 912 by Gooden, aka, "the drone bill," the House appointed conferees (Gooden, Burnam, Johnson, Moody, and Stickland) and is waiting on the Senate to do the same. (UPDATE: Senate conferees are Estes, Duncan, Ellis, Hegar, West.)

What else have readers been watching pass or die in these waning days? Update us in the comments.

RELATED: No shortage of good criminal justice bills but lower chamber never voted on them.

ALSO RELATED: Maurice Chammah at the Texas Tribune - who's about to leave the Trib to freelance and play fiddle professionally (suerte amigo) - has an article detailing which portions of the Texas Association of Business' new-found criminal justice agenda passed and failed.

Texas House approves electronic privacy legislation

Great news!

A pair of bills backed by the Texas Electronic Privacy Coalition were amended onto a Senate bill in the Texas House of Representatives (SB 1052) - one requiring warrants for police to access cell-phone location data and another instituting a warrant requirement for emails stored with a third party.

Rep. John Frullo accepted Rep. Bryan Hughes' HB 1608 (requiring warrants for law enforcement to access cell-phone location data) as an amendment to SB 1052, though not until after after his motion to table Hughes' amendment failed by a whopping 126-4 margin.  Frullo also accepted an amendment to require warrants for email stored with third parties - legislation originally filed as HB 3164 by Jon Stickland. Now, the Texas Senate must decide whether to concur in the amendments or send the bill to conference committee.

Find below the jump a copy of a press release from the Texas Electronic Privacy Coalition lauding the passage of the two amendments.

Minimal raises for TX prison guards

The union representing Texas prison guards, the American Federation of State, County and Municipal Employees (AFSCME), issued a press release today complaining that pay hikes for corrections officers are half those given to "other statewide law enforcement" (I presume that's DPS). Taking account "an increase in retirement contributions, correctional officers will only see a little over 1% increase in their actual pay this next September." See the full press release below the jump.

Lege leaning toward grand jury transparency

Quick update on a couple of grand-jury transparency bills we've been discussing on Grits this session:

On a positive note, Rep. Bryan Hughes' HB 3334 requiring recording of grand-jury witness testimony in addition to defendants cleared the Criminal Justice Committee in the Texas Senate on Friday and still has time to pass.

On the flip side, as Big Jolly reported on Friday, SB 834 making grand jury names secret appears to have died a much-deserved death on the House side. He wrote, "The only chance it has now of being revived is by attaching it as an amendment to another bill but several reps are carefully watching for this and will make certain that it doesn’t happen." Glad to hear it.  Jolly posted a video of former Harris County First Assistant DA Jim Leitner testifying against SB 834 and he hit most of the high points, but for more background see prior Grits coverage and Mark Bennett's take on the bill.

Droning On: Senate amendments worsen drone bill

Senate amendments attached last week to Texas' "drone bill" created even more exemptions to criminal and civil penalties for photography by unmanned aircraft. See coverage of the bill from Computer World,  the Austin Statesman, and the Texas Tribune. Regrettably, Grits continues to see too many problems with the legislation to support it in its current form, with the Senate amendments only exacerbating its shortcomings. The legislation heads to conference committee amidst predictions from Forbes magazine that Texas stands to be one of the states that benefits most from a "drone economy" because of the aerospace and defense industries here.

Drug policy, politics and civil liberties

A couple of recent drug war items deserve Grits readers' attention.

• At Texas Monthly, Bill Martin bring us up to speed on the disappointing lack of progress at the Texas Legislature by bills to address low-level drug sentencing that the House leadership refused to release for a floor vote, see "The Policy and Politics of Drug Sentencing." This is the second time in recent years that legislation to reduce penalties for small-time pot possession passed out of the House Criminal Jurisprudence Committee but never received a floor vote. (The last time was in 2005.)

• At the Houston Chronicle's Baker Institute blog, see a strong article by Gilbert Garcia titled, "How the war on drugs has infringed on US civil liberties."

Nearly 200 Texas LEOs use license-plate-reader location tracking vendor

When George Orwell wrote the novel 1984 he was imagining future totalitarianism dominated by socialist governments. He never considered that technologies of control would be privatized in a capitalist system, but that's seems to be where we're headed. Via Privacy SOS:

Did you know that a private company which hoards detailed information about your driving habits also has plans to create the largest private sector law enforcement database in the world, by combining plate reads with commercial databases, face recognition technology and more?

Vigilant Video is a private corporation. It maintains a database called the National Vehicle Location Service (NVLS), containing hundreds of millions of data points showing the travel patterns of millions of people in the United States. The data in the system comes from a variety of sources including government agencies, other companies like tow truck and repo firms, and a fleet of company cars that drives around sucking up license plate information on our streets and in our neighborhoods

Grits went to look at the registration page for the service and found their clients on a dropdown list. Though they're not broken out by state, by my count, around 200 Texas law enforcement agencies are clients of Vigilant Video and use its vehicle location tracking services, as well as loads of federal customers. The Immigration and Customs Enforcement (ICE) office in Dallas was among their first clients when it rolled out last year and now many others, from the IRS to the Air Force, are on the list. Among Texas state agencies, the Department of Public Safety, the Attorney General, TABC, TDCJ, TCEQ, the Department of Insurance and UT-System police departments (individually and collectively) all subscribe to the service.

All the big city police departments in Texas subscribe to the service - Austin, Dallas, Fort Worth, Houston, San Antonio, and El Paso - as well as the corresponding sheriffs and district attorneys offices in those counties. But dozens of smaller jurisdictions use them, too, from Nacogdoches to Refugio, Denton to Del Rio, from Sherman to Sugar Land. Even some constables and school district police are getting into the act. Unfortunately, one can't tell how frequently they used the service without filing an open records request with the various departments for invoices from the company for its use.

This for-profit service demonstrates how outdated 20th century conceptions of privacy need significant updating in the wake of a swiftly changing technological landscape. According to Government Security News, the company plans to quickly expand its database into biometrics: 

Surpassing the challenges of a national LPR database via NVLS, our future roadmap plans an extensive integration between LPR data and public records, a facial recognition platform, and ‘leaps and bounds’ expansion of LEARN which seamlessly ties together all data sources. We are on schedule to provide the most advanced Law Enforcement criminal database loaded with billions of records -- a universal data system with one common goal in mind -- making it easier for Law Enforcement to ‘Catch the Bad Guy’.

Except, one might quibble, the overwhelming number of people whose information makes up their database aren't "bad guys." There are lots of uses for this data besides just that. For example, Grits could see such a database eventually commercialized for use by corporate marketers, or for that matter for more nefarious purposes.

Though most people don't think of it that way, location data is the ultimate biometric. One may have plastic surgery to throw off facial recognition systems or blot out fingerprints with scarring or acid. But there is nothing more unique about an individual than their location - where they are at any given moment - because two things cannot occupy the same space at the same time. A growing body of research shows that even a small number of location points can tell a great deal about a person and the license plate recognition function instantly attaches that location data to an individual (or at least their vehicle).

License plate readers blur the lines between public and private information, calling into question outdated Fourth Amendment doctrines holding that Americans have virtually zero expectation of privacy outside the home. In US v. Jones last year, five US Supreme Court justices agreed for the first time that long-term location tracking without a warrant can violate someone's reasonable expectation of privacy. But it will be years before the courts, on a case-by-case basis, elaborate the extent and limits of those expectations, particularly when mediated through a third-party vendor as in this case. The folks compiling this database know the courts wouldn't allow law enforcement to gather all this data on innocent people so their business model relies upon exploiting a court-created loophole to let a private vendor do it. They're still agents of law enforcement, though, even as contractors.

License plate readers are all-but-unregulated technology with enormous implications in the coming years for personal privacy. There should be strict retention limits on use of such data and prohibitions on government sharing it with private vendors, which appears to be from whence the bulk of their information comes.

Budget writers delete fusion-center funding from state budget

Good news: State budget writers eliminated funding for the Department of Public Safety's "fusion center," reported Brenda Bell at the Austin Statesman ("Budget conferees vote not to fund fusion center," May 14), which would make Texas the first state to close one. She wrote:

DPS requested close to $16 million over the next biennium to continue operating the Texas Fusion Center, where about 100 employees now work in offices located at the DPS headquarters. The House had eliminated money for the center in its version of the appropriations bill, and the conference committee that is hashing out the 2014-15 state budget concurred in that decision Monday.

A factor in that decision, according to budget documents crafted by the House, was an October 2012 report by a U.S. Senate investigative subcommittee that lambasted the fusion centers for “irrelevant, useless or inappropriate” intelligence gathering and wasteful spending on private contractors, while doing little to keep the country safer. Both the statewide fusion center and the one operated by the Austin Police Department opened toward the end of 2010, too late to be included in the Senate report.

Another issue raised in the budget documents has been the focus of much attention during this legislative session — the diversion of state money collected for one purpose to other uses. Currently the lion’s share of state funding for the DPS, $1.2 billion, comes from the highway fund.

Grits won't lose any sleep over this change which IMO won't harm public safety in the slightest. Even for folks lacking a civil libertarian streak, fusion centers deserve to be axed based on a cost benefit analysis alone.

MORE: Via PrivacySOS, "Time to shut down fusion centers altogether?"

See related Grits posts:

• Texas work product overrepresented among fusion center reports criticized by US Senate subcommittee
• Fusion centers criticized by US Senate subcommittee report
• Fusion centers' lameness thus far trumps potential civil liberties threats
• Fusion centers might be scary if they actually worked

Inch by inch

"You don't lose your freedom a mile at a time, you lose it an inch at a time."

- State Rep. Harold Dutton, speaking today from the Texas House floor

Winding down: Handful of reform bills still viable in waning days of Lege

The 83rd Texas Legislature is winding down and there are a handful good criminal justice bills that still have potential to pass this session.

The other day Grits had identified five good senate bills which had received unanimous committee recommendations and were eligible to be heard on the House floor. As of this morning, two have already been sent to the governor (SB 1611 on discovery reform and SB 825 making state bar sanctions for Brady violations public), one is scheduled for a vote today (SB 344 allowing habeas corpus writs in junk science cases), while another (SB 1238 expanding the jurisdiction of the Forensic Science Commission) is on tomorrow's House floor calendar. Only SB 1114 from that list (limiting Class C tickets for school misbehavior) has yet to be scheduled for a floor vote.

The Texas Tribune ran an item recently on another good senate bill that still needs a floor vote in the House: SB 1003 which would require the Criminal Justice Legislative Oversight Committee to hire a third-party reviewer to perform a comprehensive analysis of administrative segregation (solitary confinement) in Texas prisons. The bill was altered on the House side to make the review dependent on the CJLOC securing "gifts, grants and donations" which would mean it won't happen unless some outside entity ponies up the funds. That's a little lame but I bet there will be sources available.

As mentioned earlier, there were relatively few criminal justice reform bills passed out of the House but yesterday the Senate Criminal Justice Committee heard perhaps the most prominent one - HB 166 creating a "exoneration review commission." Prosecutors came out in force against this one and the hearing was made even more dramatic when late exoneree Tim Cole's brother went off on Sen. Joan Huffman for arguing that Texas has fixed all the problems with its justice system. She wasn't going to vote for it anyway so it's unclear how much that matters, but if the bill makes it out of committee there's still time for it to pass.

Finally, of the thousands of bills filed this session, including dozens involving criminal justice reforms, there's only one bill still alive that has the potential to reduce prison populations even at the margins: HB 1790 by Longoria (see Grits' earlier discussion) which passed the House and was referred to the Senate Criminal Justice Committee. That committee will likely only meet one more time so let's hope the bill gets a hearing and moves quickly through the process. There's not much time left.

Top Five Things Wrong With Texas' Drone Bill

The road to hell, they say, is paved with good intentions, but apparently airspace will also get you there.

Open-file discovery bill named after Michael Morton soon headed to Governor

Find below the jump a press release from state Sen. Rodney Ellis hailing the passage of the so-called Michael Morton act requiring Texas prosecutors to implement open-file policies.

Conference committee rejected higher funding for law-school innocence clinics

Disappointing news this morning on funding for innocence clinics at Texas' four public law schools, an issue your correspondent has been tracking on behalf of the Innocence Project of Texas.

The chairmen of the conference committee on the budget overruled the recommendation of their fellow conferees, siding with the House budget giving each clinic $100,000 per year and rejecting the Senate's more generous recommendation to boost the amount to $150K. As of Friday, a conferee working group  recommended siding with the Senate, your correspondent confirmed with staff from both chambers. But over the weekend, Chairmen Rep. Jim Pitts and Sen. Tommy Williams set aside their recent squabbles and met to do their own markup, instead going with the House recommendation. The full committee approved the lower number this morning.

The extra money would have paid for innocence clinics' involvement in larger-scale projects like the arson review being performed in collaboration with the state fire marshal, a task undertaken at the recommendation of the state Forensic Science Commission. In addition, if the Legislature creates the Timothy Cole Exoneration Review Commission, the enacting legislation for which which will be heard tomorrow in the Senate Criminal Justice Committee, it was anticipated the increased clinic funding would help fulfill the commission's mandate to conduct a "thorough review or investigation of all cases in which an innocent person was convicted and exonerated," as called for in HB 166. That bill has a fiscal note declaring it will cost no money, which precludes hiring staff unless the commission succeeds in securing grant funding. So if the clinics don't get resources to perform these "thorough reviews," one wonders how they will happen?

The clinics had seen their budgets cut in 2011 to $80,000 per year, so even the $100,000 is a welcome increase, putting them on par with what they got three years ago. But it was unfortunate the chairmen didn't go with the Senate recommendation for the higher amount. The sums involved are relatively paltry, especially when you consider the tremendous multiplier effect these programs bring to bear by employing student labor. Few other state programs get so much bang for the buck, but in the end fewer bucks still means less bang.

'Overcriminalization and the Importance of Proportionality in Sentencing'

See a bill analysis/policy brief (pdf) with the same title as this post by Vikrant Reddy from the Texas Public Policy Foundation's Center for Effective Justice.

Roundup: Private prisons, primary contests, tech law and privacy

Here are a few odds and ends that haven't made it into full Grits posts but deserve readers' attention:

Court of Criminal Appeals races in play in 2014 GOP primary
There has been much speculation in political and legal circles this spring that all three Texas Court of Criminal Appeals judges up for reelection in 2014 may retire, which would mean Texas would have open-seat races for every slot and likely a broad field of candidates to choose from in each one. W.C. "Bud" Kirkendall, who was District Attorney for the 25th Judicial District for 20 years before being elected judge out of Seguin, has announced his candidacy for the CCA and in the coming months likely many will join him. I thought it notable that Kirkendall included an homage to online privacy in his announcement statement: "the court plays a critical role in important constitutional issues such as the right to bear arms under the Second Amendment and Texas law, search and seizure matters, surveillance limitations and questions of online privacy," he declared. "I will apply my conservative judicial philosophy, experience and maturity to each ruling, adhering to the constitutions of the United States and Texas" The Republican primary is where all the action will be in these races. Whoever the GOP nominates will win the statewide races on the party's substantial coattails, so primary voters are the only ones who matter. Grits expects quite a few candidates and competitive (if likely underfunded) races.

Dallas DA primary promises hot contest
Troubled Dallas county commissioner John Wiley Price said Judge John Creuzot should run against District Attorney Craig Watkins in the 2014 primary. Grits agrees, but one imagines Creuzot would rather the South Dallas political kingpin keep his endorsement to himself, at least until the question in the headline of this Dallas Observer blog post can be answered. If JWP falls under federal indictment, a possibility that has loomed over the county for months, that won't look so great on his endorsement sheet. Be that as it may, assuming Watkins runs for reelection, this would be an exciting and potentially vicious primary race. Dallas Dems may fault Creuzot for at one time holding office as a Republican but they've plenty to fault Watkins for as well and Creuzot can only win by reminding them of it. That'd make it a hot one.

TX Private Prison News and Notes
For those interested in private prison topics, go visit the blog Texas Prison Bidness to read recent posts about a recent lawsuit over records against Corrections Corporation of America as well as happenings in McLennan and Montgomery counties, both of which bet on overbuilt local jails then couldn't find sufficient prisoners to fill them.

Jailer pay competing with Midland oilfields
Midland County Sheriff Gary Painter is asking his commissioners court for a pay raise for his jailers to resolve understaffing at the facility. When the oilfields are running full steam, that county jail job doesn't look nearly as attractive.

School PD fined $82.5K for misreported crime data
UT-Arlington's campus police department was fined $82,500 by the US Department of Education for misreporting crime data, most seriously an episode that should have been classified as "Forcible Fondling," which is not a term I'd heard before, and another where DOE thought a vicious fight between two female roommates was serious enough to qualify as "aggravated assault." Otherwise, relayed Unfair Park from a Chronicle of Higher Education report, "The bulk of the cases involved drug, weapons, and liquor violations that were classified as 'disciplinary actions' and excluded from crime statistics."

The case for officially ignoring 3-D printed guns
Grits tends to agree with the conclusion of this excellent if lengthy blog post related to the handgun made with a 3-D printer (and actually fired) by a UT-Austin law student working through a nonprofit called Defense Distributed. (See a good backgrounder from Forbes.) Andrew Sellars at the Digital Media Law Project would "urge the courts, the legislatures, and the public to ignore Defense Distributed's handgun altogether. It distracts from the actual issues surrounding America's profound problem with gun violence. In our dreams of a 3D-printed arsenal we soon forget that the 'Liberator' cannot be made using something as simple as a MakerBot in someone's basement. This requires a 3D printer costing thousands of dollars and over a hundred dollars in raw material in order to build a gun that will probably only fire once before melting. Meanwhile, This American Life reported a few weeks back that the black market rate for a real handgun in Chicago can be as low as $25. To put it bluntly, we will see far more handgun deaths due to black market firearms this week than we will see from 3D printed guns in our entire lifetime."

Why the FBI thinks it needs no search warrant to read your old email
From the International Business Times. HB 3164 by Stickland, which was attached to another piece of legislation recently approved by the Texas House, aims to close this same loophole for state and local law enforcement in Texas.

Reject bill to make grand juror names permanently secret

The Texas House Criminal Jurisprudence Committee on Monday will hear legislation (SB 834 by Estes) to make grand juror names permanently secret, a measure Grits can hardly believe escaped the Senate and which deserves a swift killing in the House. Grits had blasted the bill earlier on a number of fronts, declaring that:

If the grand jury system - which already provides little if any restraint and generally serves as a rubber stamp for whatever decisions prosecutors have already made - becomes a complete secret run by anonymous members whose names will never be released, IMO they should probably just scrap it as farce and a waste of time. Right now, perhaps it's true prosecutors can get grand jurors to indict a ham sandwich. But if we can't know who approved (read: rubber stamped) prosecution decisions and 97% of cases end in plea bargains, it become increasingly difficult to tell if there's any meat in the sandwich at all.

Conservative blogger Big Jolly then took the matter to the next level, describing important public-interest stories from the Denton Record Chronicle (pdf) and the Houston Chronicle which would not have been possible if Sen. Estes' secrecy bill were the law of the land. (The nine-year old Houston piece in particular unpacks the law-enforcement biases in backgrounds of many Harris County grand jurors with the assistance of academic researchers, an investigative method and story that Grits suspects could be replicated nearly anywhere.) Jolly also laments that, if Estes' bill became law, the public could never have known last year about political connections between then-challenger Mike Anderson and a so-called "runaway" grand jury investigating former DA Pat Lykos (no charges were ever filed).

Jolly points out that Texas is one of only two states still using the "key man" system to appoint grand jurors, where a judge appoints commissioners who in turn appoint the grand jurors. That means transparency about who serves is important here even more than in other states. The key-man system presents a much greater risk of cronyism.

Only the Texas Defender Service testified against the bill in the Senate, with a slew of prosecutors supporting it. (Hard to believe the criminal defense bar didn't show up on that one, or the press.) But even if committee testimony doesn't fully explicate the problems with this bill, one hopes the House committee or their staff will review the critiques from Grits and Jolly as well as the news stories out of Denton (pdf) and Houston to see what we'd be giving up if they make grand juror names secret. Bad idea; bad bill.

RELATED: The House Criminal Jurisprudence Committee already approved a measure requiring greater grand-jury transparency: HB 3334 by Rep. Bryan Hughes which would increase accountability of grand juries by requiring that their interviews with all witnesses be recorded, not just defendants. That bill passed the House this week and has been referred to the Senate Criminal Justice Committee. Will the same House committee members who wanted grand-juror testimony recorded think that grand-juror names should never be publicly known? I suppose one could hold both views simultaneously, but it seems like a mildly incongruous position. If the committee thought grand juries needed more transparency a month or so ago when voting on Hughes' bill, will they now act to further lower the cloud of secrecy surrounding grand jury membership? We will soon see.

Open-file bill named for Michael Morton scheduled for Monday floor vote in TX House

The one-sided criminal discovery bill requiring open files of prosecutors - SB 1611 by Duncan/Ellis, the so-called "Michael Morton Act," carried in the House by Rep. Senfronia Thompson - has been set for a vote on the floor of the Texas House of Representatives on Monday. A couple of prosecutors opposed the bill in committee and some of the same folks have been grousing about it online. But that didn't stop the House Judiciary and Civil Jurisprudence Committee from recommending it unanimously. For the most part, the DAs have reined in most of the usual critics and the Harris County DA's decision to support the bill went a long way toward dispelling allegations that it's soft on crime. Without question, this is the most significant criminal-justice legislation of the 83rd Texas Legislature.

Also up on Monday's House floor calendar: SB 825 by Whitmire eliminating secret "private" sanctions by the state bar for sustained grievances against prosecutors for Brady violations. This bill was also pitched as an homage to Michael Morton so one would expect the man of the season to be on hand for the festivities.

Grits had earlier recommended both these bills for speedy passage so I'm glad to see them prioritized.

MORE (May 12): See Brandi Grissom's preview of Monday's vote from the Texas Tribune, including a conversation with the attorney who argued Brady v. Maryland (he lost the case but SCOTUS created the rule) and Barry Scheck of the national Innocence Project.

Hamstrung House: No shortage of good criminal-justice bills but lower chamber never voted on them

Taking stock now that the Texas House has finished considering bills originating in the lower chamber and the 83rd Texas Legislature is winding to a close, a few big-picture observations jump out.

First, the Senate has been much more effective than the House at passing bills and tackling major issues, both on criminal-justice matters and generally. Most of the important bills that pass this year will be SB this or SB that. Looking narrowly at the criminal-justice arena, the Senate generated far more significant legislation this year (particularly discovery reform) than did the House. The Senate also passed the more conservative corrections budget, with the House voting to keep open two prison units the state doesn't need and authorizing funds to buy a third that's sitting empty and for which the state has no use. The Senate is full of experienced practitioners with leadership that all worked together in the past. By contrast, the House is full of newbies and on criminal-justice issues we had all new chairmen. (The Criminal Jurisprudence Committee even changed clerks in mid-session.) This year really showed how much experience matters.

As Paul Burka recently pointed out, the House appears to be flailing with little of significance accomplished this session. Short April floor calendars did the lower chamber no favors. Some days there would be just a half-dozen bills on the general state calendar despite hundreds backing up in the Calendars Committee. And major state calendars (bills prioritized by leadership) were often surprisingly short. Then they'd end the main session early and the standing committees would continue to pointlessly pump out bills late into the evening. Most of the legislation that did get a floor vote was notable primarily for its innocuousness.

Not that there weren't any important proposals available for consideration. House leadership simply never let the membership vote on numerous significant bills coming out of its criminal-justice related committees, even when they had broad support. CSHB 1608 requiring a warrant for cell-phone location data had 108 representatives signed onto it including 11 of 15 Calendars Committee members, but was snubbed with a slot on Thursday's unreachable "consolation calendar" (perhaps in retaliation for the author's bumpy relationship with the Speaker). Legislation that would have saved real money in incarceration costs like adjusting theft categories for inflation or reducing low-level drug penalties never got a vote, either. (Arkansas could get this done but we couldn't.)

Grits had earlier declared that CSHB 104 by Gonzales (rescinding the Driver Responsibility Surcharge for two years while an alternative funding source is found for trauma hospitals) would begin to "correct what's arguably the worst public-policy error by the Texas Legislature in the 21st century," but House members never voted on it. Also, the Calendars Committee denied House members the chance to vote on a key recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions to require recorded custodial interrogations for serious crimes. The House did pass a bill creating a longer-term exoneration review panel, also named after Timothy Cole, but one has to wonder why, if the leadership won't let the House vote on Tim Cole Advisory Panel recommendations from 2009?

So the House produced little of consequence on criminal justice. Also no big water bill. No "Texas solution" on Medicaid expansion. More debt for roads. Not much of significance on education. Luckily, though, before they finished Thursday night House members were allowed to pass a bill "Relating to exempting premiums for policies covering stored or in-transit baled cotton from certain taxes." It's important to prioritize the big stuff.

The Texas Senate seemed more or less ready to govern this session, but the same couldn't always be said for their compatriots on the other side of the building, where the biggest priority appeared to be avoiding controversy and long work days. (Committees often worked late, but members only once in the homestretch worked until midnight on the House floor, on the final day for passing House bills.) Because of the 2/3 rule - where 21 of 31 senators must agree before a bill can reach the floor - the body by its nature is not typically a generator of bold ideas, which more routinely come from the House side. From my observation, there's presently a lot of talent in the Texas House of Representatives and no shortage of good ideas and innovative thinking, but the leadership won't let them accomplish much that matters. I don't particularly understand why. I suppose, at root, it's simply an endorsement of the status quo.

Report: Deal cut to close two private prisons

Though Grits had heard that the decision over prison closures wouldn't be made until a 9 a.m. meeting of the budget conference committee on Monday, at which I was told to expect "fireworks," Mike Ward at the Austin Statesman reported today ("Deal reported on plan to close two private prison," May 10) that a deal has been struck. His story opened:

Senate and House negotiators have tentatively agreed on a plan to close two privately run state prisons, potentially resolving a political feud that threatened to derail the reauthorization of the state’s criminal justice agency.

Officials confirmed Friday that instead of specifying which two prisons should be shuttered, at a time when the state has more than 12,000 empty prison beds, lawmakers will let the prison system’s governing board decide which facilities to close.

But under new criteria that the Legislature has directed the prison board to use, a Mineral Wells prison that House members have been fighting to keep open will probably still be prime for closure. ...

Lawmakers said wording will be added to the budget bill specifying that two prisons must be closed — without naming them — while removing $97 million in funding, the cost of operating Mineral Wells and Dawson.

Leaders in both chambers said an agreement has been reached to close Dawson, but lawmakers who represent Mineral Wells are still fighting to keep their facility open. They argue that closing it would devastate the Mineral Wells economy.

If accurate, this is good news. The story doesn't mention the Jones County facility but if they're closing two units TDCJ likely won't be buying another one. Grits, of course, has been pressing for this course of action for some time.

Two years ago Texas closed a prison for the first time since the state first built one in the 1840s - a nearly century-old unit built to provide cheap labor to a now-defunct sugar plantation. This session it looks like we may close two more-recently built private units. If Sen. Whitmire succeeds in shutting down Dawson and Mineral Wells, or whichever two units end up being closed, Grits believes the goal should be to close four more when the next session rolls around in 2015. Indeed, with relatively modest policy alterations, it's not hard to envision closing more than that over the next few sessions. Incarceration rates have failed to decline with crime rates and over the last two decades, policy has been the main driver of incarceration levels, up or down, far more than crime rates. The Legislature could and should decide to spend less on prisons, starting with this biennium's budget.

Related:

• Texas House edging toward prison closures but doesn't want mentally ill in solitary confinement
• A plea to Texas budget conferees: Close two prisons and don't buy empty cells we don't need
• Budget conferees gather with opposing mandates on prison closures, purchases
• Texas House would buy new prison unit, rebuffs Senate suggestion for prison closures

SBs the Texas House should pass immediately

Now that the Texas House of Representatives is through with its last-minute rush of its own legislation, it can get down to considering senate bills. Here are several criminal-justice reform bills over from the Senate that Grits has been tracking which are already in the House Calendars Committee and ready for a vote by the full body. All five passed out of their respective House committees unanimously and deserve action on the floor as soon as possible:

• SB 1611 (Ellis/Duncan): One-sided criminal discovery reform requiring open files of prosecutors. This is the so-called "Michael Morton Act."

• SB 1238 (Hinojosa): Expanding jurisdiction of the Forensic Science Commission to overturn portions of a limiting Attorney General's opinion.

• SB 344 (Whitmire): Clarifies standards for courts to grant habeas corpus relief in junk science cases. (BTW, thanks to Gene Wu for signing on as a coauthor with Sylvester Turner on the House version).

• SB 825 (Whitmire): Eliminating secret "private" sanctions by the state bar for sustained grievances against prosecutors for Brady violations.

• SB 1114 (Whtimire): Limiting Class C tickets in schools.

I'm sure there are more but these seem like no-brainers.

'Superheroes value their privacy': Warrants for cell-phone tracking bill could get House floor vote late in day

(UPDATE 5/10: They did not get to this bill before the deadline expired.) The Texas House rolled through scores of bills yesterday, increasing the possibility that Rep. Bryan Hughes' HB 1608 could get a House floor vote. The legislation was theoretically placed as the second item on Thursday's calendar, i.e., today, which is the last day for the House to vote out House bills. But capitol wags have been calling that the "consolation calendar" because it seemed so unlikely the House would ever get through all the bills scheduled ahead of it. But as of this morning there are around 100 bills still unheard in front of it on today's general state calendar - not an impossible number to get through if they continue at yesterday's clip. If it happens, it will likely be sometime approaching midnight, at which point if they haven't reached HB 1608, it and scores of other bills on the calendar behind it all turn into pumpkins.

Work fast, House members, and please for heaven's sake no chubbing! See a Texas Tribune item published today previewing the bill's nail bitingly precarious circumstances.

Anticipating the remote possibility the House might reach this bill, yesterday volunteer Claire James and I (but mostly her, thanks Claire!) distributed flyers promoting HB 1608 stapled to thank you notes featuring Spiderman - because "superheroes value their privacy" - on behalf of the Texas Electronic Privacy Coalition to most of the 100+ joint and co-authors who've signed onto the bill (if you didn't get yours, Representative, we're coming by today). More volunteers from TXEPC coalition member Texans for Accountable Government (thanks guys!) distributed flyers to all the members who weren't co-authors. (At least the ones who hadn't already expressed opposition to the bill.)

"Superheroes value their privacy." I wish we'd thought of that slogan earlier! After all, who guards their privacy more closely than superheroes? Batman, Superman, Spiderman, Captain America - all the great ones employ closely guarded secret identities, not to perpetrate evil but to enable their work for good. One of the items on Batman's utility belt in 2013 surely must be a smart-phone. But we may be certain the Caped Crusader doesn't want his cell-service provider handing out his historical location records. There are some secrets even Commissioner Gordon needn't know, at least without demonstrating probable cause to a judge.

Whether or not the House can whip through its calendar faster than a speeding bullet (cross your fingers), win or lose those 107 joint and co-authors deserve thanks for championing Fourth Amendment rights in an era when they've been consistently trampled. Here's the note we gave them:

 

Superheroes value their privacy

In other House floor news, HB 1790 (discussed here) passed on second reading last night. This was one of the good bills Grits had urged the Calendars Committee to give a floor vote in these final days and one of the few, along with Senfronia Thompson's HB 990, where they agreed with the recommendation. Of course, as Ross Ramsey at the Texas Tribune recently noted, until the Legislature leaves town, nothing is truly, finally dead.

RELATED: Disparate courts which can't figure out how to uniformly interpret the law are an excellent argument for legislative action. From the Volokh Conspiracy's Orin Kerr, see "District judges divided on long-term cell-phone tracking under the Fourth Amendment."

LESS, BUT STILL SORT OF RELATED: At least on the subject of electronic surveillance ... Texas federal Magistrate Judge Stephen Smith - an early voice in the wilderness regarding cell -phone tracking and a judicial superhero in his own right - made related news recently with a written opinion denying a warrant to the FBI "to hack a computer suspected of criminal use" that is likely outside his jurisdiction by installing some mysterious software about which the state would not elaborate. Wrote Smith, the feds wanted to "activate the Target Computer's built-in-camera and snap photographs sufficient to identify the person using the computer. The Government couches its description of this technique as 'photo monitoring' as opposed to video surveillance, but this is a distinction without a difference. In between snapping photographs, the Government will have real-time access to the camera's video feed. That access amounts to video surveillance." Smith concluded that, "This is not to say that such a potent investigative technique could never be authorized under rule 41. And there may well be a good reason to update the territorial limits of that rule in light of advancing computer search technology. But the extremely intrusive nature of such a search requires careful adherence to the strictures of Rule 41 as currently written, not to mention the binding precedent for video surveillance in this (5th) circuit." Judicial oversight of surveillance is important and Judge Smith, and his fellow superhero and Magistrate Judge in Texas' Southern District, Brian Owsley, are shining examples why. Nobody in the legislative or executive branches seems to be asking those questions. But somebody should be. Those guys are performing a great mitzvah by demanding as much transparency as possible around the use of 21st century surveillance technology. (See Grits' writeups of panels Smith and Owsley participated in here and here, respectively.)

Op-ed: Don't needlessly expand local police wiretapping authority

The Houston Chronicle today published an op ed I wrote in opposition to legislation expanding authority of large Texas police departments to perform wiretapping. Grits readers have seen most of the arguments before, but for those interested, see it here. The column concluded:

This bill amounts to a solution looking for a problem. If HPD had received judicial approval for a wiretap and DPS was unable to implement it, that'd be one thing. But if it's just to give them a leg up in some bureaucratic turf war with the feds or to keep from having to involve DPS, those don't seem like very good reasons to let the big local law enforcement agencies have this expanded authority.

The reason past legislatures centralized wiretapping at DPS wasn't because locals couldn't operate the technology but because they judged that it's better to keep such authority in one place to make it easier to regulate. That logic hasn't changed, and with the volume of requests so low, there's just no pressing need for the changes sought in SB 188. The Texas House should reject the legislation.

Rough sledding for TDCJ board nominees

The Texas Senate Nominations Committee delayed another Rick Perry nomination to the Texas Board of Criminal Justice after rookie Sen. Sylvia Garcia uncovered during questioning that San Antonio businessman Terrell McCombs had not listed all the businesses he owned on his application, reported the Statesman's Mike Ward.

The episode follows the recent Annette Raggette ignominy, in which a nominee declared on her application she wasn't related to a state official though her brother in law and long-time business associate Oliver Bell is the board chair. Bell now says he "should have been paying more attention" when he recommended her for the board, which strikes me as not a particularly credible reaction. Grits must admit a small measure of pride that a short post on this blog started the ball rolling on the committee's investigation of Raggette and Bell's relationship.

In response to the Raggette and McCombs embarrassments, the Nominations Committee created a new rule this week "to require for the first time that all nominees provide up-to-date information on their applications and personal financial statements, and certify in writing that all the information is correct, before they will be considered for approval by the Senate," wrote Ward, who continued, "In investigating the Raggette nomination, senators said they were disturbed to find out that her application and others submitted by nominees had not been fully filled out, that some information was more than a year old and that many nominees’ backgrounds had not been verified or only undergone a cursory check."

It really does seem these nominees aren't being vetted well.

Wasteful police spending, Big Brother, and prison stories

Here are a few brief items that caught Grits' attention but didn't make it into independent posts:

Eliminate waste rather than throw money at new police hires
The Austin PD is requesting nearly 100 more uniformed officers in the next city budget. As Grits has argued many times, instead of hiring ever-more officers the agency should eliminate waste by requiring burglar alarm companies to implement a verified response system, calling the police only when a crime has actually been committed. Austin doesn't need more police officers it needs to be a lot smarter about using the ones they've got.

More exposure on wiretap expansion bill
The Austin Chronicle has a brief item highlighting the bill expanding wiretapping authority to local police in big cities that Grits discussed here, here, and here. I'm a bit surprised the issue hasn't drawn more attention.

'Lawsuit targets prison company over records request'
See the story at the Texas Tribune.

Letters from La Tuna
The El Paso Times has an interesting pair of stories about and by former businessman Bob Jones, who was "Once one of the most powerful people in El Paso, a larger-than-life figure who traveled in his own private jet" but "is now just another inmate in the federal system." See their feature article and an essay by Jones about his first six months in the federal La Tuna prison in which he describes life in solitary confinement and his experience almost dying from near-fatal E. coli infection. Interesting stuff.

IRS using Big Data for tax enforcement
This is creepy and before long every law enforcement and regulatory agency in the country will probably have similar  capabilities.

Do young people care about online privacy?
Turns out, more than you think.

Texas House votes to require warrants for old emails stored with third parties

Great news! This afternoon, Rep. Jon Stickland successfully attached a version of his HB 3164, requiring police to obtain warrants for emails stored with third parties (think cloud computing) older than 180 days, to legislation by Rep. John Frullo, HB 2268. Here's how the Dallas News' Karen Brooks Harper described the action, which Grits observed from the gallery:

Frullo briefly tried to fend off an amendment by Bedford GOP Rep. Jonathan Stickland that requires law enforcement to get a warrant before they can get emails from an ISP that are over 180 days old. Currently law says that after an email has existed for 6 months, police no longer need a warrant to get it from the ISP – gmail or what have you.

But that law was written in the 80s, Stickland pointed out – and a lot has changed since then.
“At that time in our state’s history, no one imagined we would have the storage capacity and ability that we have today,” he said. “No one ever thought we’d keep an email for more than 180 days.”

But we do, and after six months they become open season, and so Stickland and a handful of other reps pushed for a change that would require police to get warrants for that stuff no matter how old it is.

Frullo tried to keep it off his bill simply because the language had already been agreed to by stakeholders and he wanted to keep it clean. But, sensing a revolt on the floor and bipartisan support for the amendment, he dropped his opposition and let it onto his bill to keep it from blowing up on the floor – a common tactic employed by this much-friendlier House.

For more background, see a guest column Grits wrote supporting the bill that was published in the Dallas News back in March. The legislation was a key priority of the Texas Electronic Privacy Coalition, with which Grits has been working closely. Though I'm thankful Rep. Frullo accepted the amendment, part of me would have liked to have seen which members would have voted on the record to say police can read your email without a warrant. Apparently  Frullo, like me, suspected their number would be few.

In the era of cloud computing, Stickland's amendment makes a lot of sense. Both it and the bill that mirrors it primarily delete and simplify the text of the search warrant section of the Code of Criminal Procedure on stored electronic communications, getting rid of an array of various, antiquated loopholes. Current Texas law (see CCP 18.21, Sec. 4) says police need only a subpoena to access emails older than six months if the target is notified, or if they don't want to notify the target they can get the information under a very permissive standard in federal law - "material" and "relevant." There's similar legislation moving at the federal level to require a warrant for old emails, though with Congress so dysfunctional there's no telling if it will pass. So Stickland's amendment is timely and may even help influence the national debate on the topic. In the modern era, it's ridiculous to let police access old emails without demonstrating probable cause just because they're stored with Gmail instead of on my hard drive.

The senate companion to Frullo's bill has already passed in the upper chamber and been referred to the House Criminal Jurisprudence Committee, but without Stickland's amendment. So there are still some i's to be dotted and t's crossed before the amendment is on the final, passed bill. And then the senate author, John Carona, must decide wither to concur. You never know, but my bet is that he spares his colleagues a vote that would put them on record saying police can read people's old email without a warrant and lets the amendment stay on.

Congrats to Rep. Stickland and his staff. That's a nice achievement for a freshman legislator. I hope it stays on the bill.

See related Grits posts:

• Protecting email from warrantless government searches
• Require warrants for police to read old email

Texas House edging toward prison closures but doesn't want data on mentally ill in solitary confinement

The big news out of the vote on yesterday's TDCJ Sunset bill, reported the Texas Observer was an amendment related to prison closures:

on Saturday an amendment by conservative Weatherford Republican Phil King will require the department to prioritize closing the most costly private prisons over less-expensive ones (in a “cost-benefit analysis,” as King put it).

Quite a few Republicans have embraced a smart-on-crime approach and believe that mass incarceration, especially of nonviolent offenders, is not only fiscally irresponsible, but doesn’t reduce crime. Tan Parker (R-Flower Mound), chair of the House Corrections Committee, said, “It is our intention here to be fiscally responsible. … I believe it is very important that we close at least two facilities, if not more.”

“Thankfully, it’s a good situation that we find ourselves in Texas, that crime is on the decline,” he said.

That vote on its face seems to contradict the decision by House budget writers not to close prisons this year and in fact to purchase an extra unit the state doesn't need. Chairman Parker's call for closing "at least two facilities" makes Grits optimistic that the conference committee on the budget will side with the Senate side to close two prisons.

Rep. King's amendment, I suppose, could complicate which units get closed. Senate Criminal Justice Committee Chairman John Whitmire has argued for closing the Dawson State Jail in Dallas and a pre-parole facility in Mineral Wells. There are several elements to consider when judging which units to close: Not just cost is important but also the ability of the agency to adequately staff the unit (many rural units are chronically understaffed), which units deliver inadequate medical care, which ones have the most heat-related deaths, whether the unit has suffered chronic contraband or corruption problems, and whether there are higher, better uses for the surrounding property, among others. There's nothing wrong with using cost as guidance but it shouldn't be the sole factor. To me, closing Dawson and Mineral Wells should be a foregone conclusion and by now we should be discussing which units to close next.

(MORE: From the Texas Tribune, which reported that the amendment would put off prison closures for two years. That's more consistent with what was in the House budget. AND MORE: From AP.)

Not all went smoothly yesterday, though. The El Paso Times has the story of another amendment that regrettably didn't get on in a blog post titled, "House doesn't want to know about mentally ill in solitary." Here's the gist:

Rep. Marisa Marquez, D-El Paso, proposed an amendment requiring the department to report the cost and other informaion regarding prisoners in solitary. The amendment failed 59-68.

Clearly outraged, Marquez told her colleagues that solitary confinement is one of the most expensive, least effective ways to treat mental illness. Didn't legislators  realize that these same inmates are being released into their constituents' neighborhoods - usually with no assurance that they're getting care they need, she demanded.

After the vote, Marquez fumed that so many of her colleagues claimed to be fiscally conservative, yet they didn't want to know more about a major expenditure by a prison system that is the third-most expensive item in the state budget.

RELATED: A plea to Texas budget conferees: Close two prison units, don't buy empty cells we don't need.

Charges filed against former Nueces County DA

Charges against Williamson County District Judge Ken Anderson following the court of inquiry in the Michael Morton case aren't the only recent example of a former District Attorney coming under indictment for alleged prosecutorial misconduct. Former Nueces County DA Anna Jimenez - who was appointed to the slot in 2010 by Governor Rick Perry but failed to win re-election - faces charges for allegedly falsifying affidavits in a murder case. Jimenez went on to work at the capital defender's office on Lubbock, where here boss has suspended her while issuing a supportive press statement. Here's a copy of the indictment (pdf) and some brief news coverage. (Coverage from the Caller Times is behind their paywall.)

Between the Anderson and Jimenez indictments and Travis County DA Rosemary Lehmberg sitting in the county jail over a DWI, this has been a harsh few weeks for the prosecutorial profession in Texas. Republican state Rep. Jeff Leach recently authored a column titled "Prosecutor misconduct swept under rug for too long." Relatedly, a recent ProPublica story asked, "Who polices prosecutors who abuse their authority? Usually nobody." But recent criminal charges against allegedly rogue prosecutors add to the impression that, increasingly, "Texas prosecutors are no longer unassailable." Whether we're witnessing a paradigm shift that could fundamentally alter the prosecutorial culture that engenders misconduct - or just a temporary flash in the pan in response to media criticism - remains to be seen. But in my adult lifetime, Grits can't think of another period when so many current and former prosecutors found themselves in legal hot water all at once.

Good House bills deserve floor votes as session's end draws near

There's very little time left for bills in the Texas House of Representatives to receive votes on the House floor before deadlines next week close off their chances to become law. There are several bills presently sitting in the Calendars Committee that I'm especially hopeful may make it onto the list to receive votes before the bell tolls on hundreds of House bills next week:

• HB 1608 by Hughes requiring government to obtain a warrant to obtain personal cell phone data,
• HB 1096 by Canales requiring law enforcement to record custodial interrogations for the most serious offenses, and 
• HB 104 by Gonzales abolishing the Driver Responsibility Surcharge for two years while the Legislature and stakeholders look for alternative trauma hospital funding.

Hughes' bill has broad bipartisan support from 108 House members, including eleven members of the Calendars Committee; if that level of support can't secure a floor vote I don't know what it will take. Canales' legislation is a key priority of my employers at the Innocence Project of Texas and one of the last few recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions that the Legislature has yet to implement. And Gonzales' bill is a bipartisan effort to correct what's arguably the worst public-policy error by the Texas Legislature in the 21st century (which is saying something) - repealing a statute which even the original bill authors agree was a mistake that needs to be eliminated. (See more on HB 104 from Paul Kennedy.)

All of these bills deserve a place on one of the final calendars of the session when the House can approve House bills.

Relatedly, Grits had earlier recommended several additional bills for House floor votes and I'm pleased to see one of them, HB 990 by Thompson, which would authorize creation of a state sentencing commission, was placed on Saturday's calendar. (There are also a number of prefiled amendments aimed at the TDCJ Sunset bill which will be heard that day.) A pair of drug-reform bills Grits favors, though, CSHB 184 and HB 2914, continue to linger in the Calendars Committee and deserve floor votes. And I'd like to see the House vote on HB 1790 by Longoria which would provide positive incentives for probationers to succeed in addition to merely threatening revocation for failure. There's still time left to pass substantive criminal-justice reform legislation this session, but not much.

UPDATE (5/4): HB 1790 has been posted for a vote on Tuesday's House floor calendar, as has HB 912, known universally as "the drone bill." There are two more calendars yet to be published on which the other bills could still be added.

Surveillance cameras and signage

This morning I went to testify in the Texas House Homeland and Public Safety Committee for a quirky little bill, HB 3165, by freshman state Rep. Jon Stickland, which essentially has two parts: 1) It would require local governments to post signage at surveillance cameras that declare, e.g., "Warning, you are under Surveillance by the City of Dallas." (Could we amend that, I wonder, to require an exclamation point?) And 2) it would require local governments to post live feeds of all their surveillance cameras online. Quite a piece of legislation, that! Not something I was part of bringing forward but the bill author asked if I'd speak on it and having nothing else pressing on my agenda at 8 a.m., I thought, "why not?" What follows is a summary of my testimony.

First, I argued to the committee, requiring signage would increase the deterrent value of the cameras and therefore increase public safety. Studies in the UK, which as chairman Joe Pickett pointed out is the most surveilled nation on the planet, have found very little crime fighting bang for the buck from cameras. They are most effective for use on high-value targets and then only if they're monitored in real time. Indeed, I told the committee, if the goal is public safety and you had to choose between the camera and the sign, Rep. Stickland's sign would probably do more to reduce crime than the camera. Rep. Dan Flynn agreed, noting that banks he'd worked at routinely posted signs advertising cameras were watching without the cameras actually functioning, at least until federal law began to require them to have working surveillance units. Merely advertising cameras' presence was generally considered sufficient deterrence.

During Rep. Stickland's opening, Chairman Joe Pickett asked about cameras at the Boston Marathon bombing, wondering what would have happened if the attackers had seen one of Stickland's signs. I raised that example again, suggesting that it was possible the bombers, who after all were relatively young, would have moved to a spot where there was no signage. Well, what if there were surveillance all the way down the last half mile of the marathon route? Then the signs, if they'd been in place, might have served to move the bombers out of the area with the most people. You never know. Otherwise, I reminded them, because of personal cell phone cameras, businesses surveillance footage, etc., there were plenty of pictures from every imaginable angle. The difficulty was isolating the culprits.

Rep. Kenneth Sheets thought it unnecessary and potentially distracting to put such signs near traffic cameras. I replied that a sign saying their driving was being monitored by camera might make people drive better, but allowed that perhaps a carve out could be made for traffic cameras, especially if limits were placed on law enforcement uses like license plate identification, facial recognition software, etc..

In the bigger picture, I pointed out, though the bill author wasn't around to remember it, Stickland's bill amounts to pushback against a bad law passed in 2003 in reaction to 9/11 that made all information about surveillance cameras a closed record: Where they are, specs of the instruments, policies for how the images will be used, who has access to them, etc.. Rather than make the back-end records public about where the government has surveillance cameras, which is what we lost in 2003, Stickland's bill would put the information in your face everywhere you're surveilled, which is a lot of places! Still, in a real sense this bill amounts to an extreme antidote to the opacity regarding surveillance foisted on Texans after 9/11.

Technology evolves, I reminded the committee, and the uses of camera technology are changing rapidly. Both the government (especially the FBI and NSA) and the private sector (especially Facebook) are developing incredibly robust facial recognition systems. Today, remote biometric recognition is not just possible but rapidly improving. Faces, iris scans, even walking gaits can identify individuals via cameras. Once police begin to integrate systems it could make routine a brand of Big-Brotheresque surveillance that a decade ago was still relegated to the realm of futuristic movies. There are already pedestrian-level billboards in Japan and Las Vegas that analyze the biometrics of passersby to target advertising based on age, gender and other basic characteristics. The day is coming when such billboards will identify you via facial recognition, analyze your Facebook page and other public data, and target advertising to you individually.

It's one thing for private companies to use such tech to try to sell you something, but quite another for the government to use it for law enforcement purposes. In a world where that sort of invasive technology exists - where we can see the day coming when a person will be innocently walking down the street, spotted by a camera connected to a government database, identified via facial recognition or other biometrics and quickly have a Big-Data style background search run on them to discover any possible red flag, all automatically, via algorithm - people deserve to be warned. Whether Rep. Stickland's idea of physical signage within 10 feet of the camera is the best or most effective means is a matter one can debate. I've heard worse suggestions. But I do think the public has a right to know when their government is watching them.

The only opposition was from a fellow from the city of Austin who said they have around 900 traffic cameras and perhaps 250 surveillance cameras. They don't want to put up signs and I don't blame them. As Rep. Stickland pointed out, they would always have the option of removing cameras.

The idea behind having all the footage from government surveillance cameras online, as I understand it, is an effort to ensure the government isn't using the cameras for things they shouldn't be by letting everyone see what they're looking at. But local government and other state reps rightly complained that that could entail a significant fiscal note. It struck me that the same thing could be accomplished with no fiscal note just by reversing the 2003 legislation that made all that footage, the policies, etc., a closed record. That would be a a fine open-government substitute and would eliminate most of the fiscal burden on the locals that seemed to be the primary source of opposition.

Of course, this is one of those statement bills that's already deceased by the time it was heard. Short of an act of God, there's likely not enough time for it to make it through the process. But I was glad to see a Tea-Party affiliated freshman beginning to engage on these privacy and surveillance issues and must say I was surprised that the committee's concerns were more technical and practical than hostile to Mr. Stickland's purpose. With a little more time over the interim to clean the bill up and address some legitimate concerns of stakeholders, perhaps he could do some business in that committee next session with this bill.

See related Grits posts:

• On the limits of surveillance cameras for crime reduction
• A cost-benefit nightmare: One crime solved per 1,000 surveillance cameras
• UK to police: Cameras in public places don't reduce crime
• Cameras, crime reduction and cost
• I always feel like somebody's watching me
• Dallas police cameras focused on petty crime, public relations
• CCTV proponents should abandon claim that surveillance cameras reduce crime
• Schneier: Now's the time to limit CCTV waste and abuse
• Surveillance cameras and crime
• Best way to terminate surveillance society is through cost-benefit analysis
• Does camera surveillance in public areas reduce crime? Austin chief think so
• Over the Top: Houston chief wants cameras in apartments, private homes
• Cameras wrong response to London bombings
• Dallas cops share surveillance tapes with private businesses
• Why surveillance cameras don't reduce crime
• Safer with camera surveillance or just more exposed?
• Britain: Surveillance cameras 'do not stop crime'
• Big Brother cashes in: Biometrics industry sees profit growth in surveillance camera proliferation
• Biometric Blues: First Stanza, Second Stanza, Third Stanza