Wednesday, November 26, 2014

Odds and ends: How best to reduce pot penalties, surging toward inanity, pregnant in jail, and other stories

Here are several items which haven't made it into independent posts this week but merit Grits readers' attention.

Wu: Reduce pot possession <.35 ounces to ticket-only misdemeanor
Houston state Rep. Gene Wu has filed legislation, HB 325, to reduce possession of up to .35 ounces of marijuana to a Class C misdemeanor. While Grits generally supports penalty reduction for pot possession, .35 ounces seems like an odd cutoff point. Presently, possession of up to two ounces is a Class B misdemeanor based on the assumption that such lesser amounts represent personal use levels. I see little reason to treat someone possessing a half ounce for personal use differently than someone possessing a quarter ounce. To my mind, the best solution would be to ratchet down current penalty categories by one level, not to create a new category to carve out small amounts.

That said, I'm incredibly appreciative that Wu's raising the issue at all and would not let the perfect become the enemy of the good by opposing the idea. But recent polling indicates the public would support more aggressive reforms.

Surging toward inanity
Following up on themes from recent Grits posts, check out a pair of recent stories on the politics of Texas' border "surge":
Drug war corruption? Say it ain't so
A Starr County sheriff's deputy was arrested smuggling pot through a border checkpoint.

Pregnant in jail
Check out an SA Current story titled "The fight for better care for pregnant women in Texas jails" which informs us that a coalition of groups led by the Texas Jail Project is "calling on the Texas Commission on Jail Standards to implement more robust, detailed policies and procedures to ensure pregnant women get proper obstetric, prenatal and postpartum care while they're incarcerated in Texas county jails. The coalition argues that, with more than 200 county jails statewide, the commission's minimum standards aren't strong enough, nor are county jails held accountable if appropriate care isn't available, creating a dangerous situation for expectant inmates."

Why grand juries don't indict cops
Riffing off the Ferguson kerfuffle, FiveThirtyEight has a column speculating on reasons grand juries almost never indict police officers. Scott Greenfield points out that, in the Ferguson case, the prosecutor did not actually ask the grand jury to indict. Their role was essentially to function as a stage prop in political theater. MORE: From Al Jazeera America, see "Why police are rarely indicted for misconduct" and from The Atlantic, check out a piece from Conor Friedersdorf on why the case more police reform is bigger than Ferguson and the Michael Brown killing.

Explaining the Great American Crime Decline
An article from the new Marshall Project suggests various hypotheses for the jaw-dropping decline in crime witnessed across the country since the early 1990s. The essay that reminded me of Grits own, similar compilation of hypotheses a couple of years ago, though he didn't mention my personal favorite "video game" theory, which holds that young men spending hours playing Grand Theft Auto on an XBox have less time to spend on the streets stealing my car. The National Academy of Sciences recently published an extensive report on this topic. See an overview essay on their findings and find the full report here.

Obama's clemency record sucks
Grits may complain that Texas governors under-use the pardon power, but it bears repeating that President Barack Obama's clemency record sucks harder than any American president in living memory.

Shameless self promotion
Grits was nominated for the American Bar Association's Blawg 100 list of top legal blogs which are chosen by reader votes. Go here to vote for Grits in the criminal justice section and to check out the list of other nominated blogs.

Sunday, November 23, 2014

Holiday clemency questions at gubernatorial transition

On Friday, Michael Hall at Texas Monthly wondered, "Will Rick Perry grant clemency to Max Soffar?" His post brought to mind two broader, related questions.

First, will Rick Perry issue one more round of Christmas-time pardons, as has become his wont, before departing for the presidential campaign trail? (A corollary question, if yes: Will they include significant pardons, like Soffar's, or only trivial ones like in most prior holiday seasons?)  And, second ...

Will Greg Abbott exercise clemency more generously than Perry? Texas' longest serving governor rejected two-thirds of recommendations for clemency sent to him by the Board of Pardons and Paroles, for the most part allowing the constitutional pardon power to atrophy on his watch. He's not the only executive-branch figure to ignore the clemency process: It's something Rick Perry and Barack Obama have in common. Still, to my knowledge, no reporter ever questioned Greg Abbott during the campaign about his stance on executive clemency: Other than his view that governors can issue posthumous pardons, who knows what Abbott thinks about the pardon power?

Of budgets and border boondoggles: A reality check

The Austin Statesman has a good article (Nov. 22) on the impact of constant border deployments for game wardens, starting with a 19 percent drop in citations written in other parts of the state, as evidenced in the graphic below.

But even more than the lamentable if predictable impact of diverting focus from game wardens' traditional duties to a politicized snipe hunt, this tidbit stood out at me: "Gov.-elect Gregg Abbott said in February that he wants to nearly double state spending on the border, suggesting a 'continuous surge' with 1,000 new officers on the ground."

Not to beat a dead horse, but how does the state 1) double the billion-dollar border surge, 2) shift highway money from DPS to roads, 3) constitutionally index spending increases to inflation and population growth, and 4) cut taxes? Those can't all happen. Something's got to give.

Math trumps ideology when it comes to appropriations, if not in elections. It's fine for politicians to say such foolishness on the campaign stump but the budget has to balance or they don't get to do it all. Governing involves choices and today's generation of Texas Republicans are no longer back-benchers throwing Molotov cocktails at Bob Bullock and Pete Laney's agenda. They're in charge and governing a state with 25 million people and a balanced budget mandated in the state constitution. Moreover, since 2003 the state has already gone through several sessions involving major budget cuts that more or less stripped state government down to the bone, save for this Big Government border-security misadventure.

Grits has hoped throughout the fall that Texas' leaders would begin to walk back some of these oddly contradictory positions once the campaign season ended, but not so far. Eventually, reality will impose itself in the budgeting process whether or not it's able to penetrate state leaders' political rhetoric. But it'd be better for everyone if that happened before the eleventh hour next May.

Friday, November 21, 2014

Might Texas revisit needle exchange pilots with Susan Reed gone, disease prevention in the news?

Grits wonders if - owing to recent events surrounding the Ebola scare and the outlandish costs of Hepatitis C treatment under new drug protocols - 2015 might be a year in which the Texas Legislature favorably revisits Rep. Ruth Jones-McLendon's legislation allowing local health authorities to create pilot needle-exchange programs? This session, her bill allowing such pilots in Bexar, Dallas, El Paso, Harris, Nueces, Travis, and Webb counties is HB 65.

Legislation authorizing a pilot needle-exchange program passed once before back in 2007. Rep. McLendon carried the bill in the House and Dr. Bob Deuell (who lost his primary in the spring and will not return next year) championed it in the Senate. The designated pilot location was McLendon's home county in Bexar; Governor Perry approved it and local officials looked forward to implementing it. But Bexar County District Attorney Susan Reed, who herself was ousted earlier this month in the general election, threatened to prosecute volunteers who participated in the pilot, effectively rescinding the Legislature's permission under authority of the executive branch. (See Grits coverage here, here, here, here, here, and here.)

Senator Deuell seemed to lose heart in the fight after 2009, when the bill passed the Senate but died sitting on the House calendar while Democrats chubbed over voter ID. The good doctor threw up his hands on the issue after that - there are plenty of other topics, after all, on which an East Texas Republican can expend his political capital - and the bill hasn't moved much since.

However, the political landscape surrounding the issue arguably has changed since then, for starters thanks to a renewed concern for preventive public-health strategies in light of the Ebola scare. A recent Texas Tribune headline, one of their last in the New York Times before that partnership ends, read, "Ebola scare behind it, Texas is bracing for the next viral crisis."

There are many possible methods of disease transmission and, just in recent decades, IV drug use has been a significant factor in the spread of both HIV and Hepatitis C. As the state considers comprehensive disease-prevention strategies (a Perry-appointed task force will release its Ebola-centered recommendations after the holiday), reviving the idea of pilot needle-exchange programs only makes sense. HIV/AIDS killed many thousands before treatments were found. And Hep C may end up costing the state untold sums thanks to a new drug called "Sovaldi," which cures the disease but costs in the neighborhood of $80,000 per patient. At those rates, it would run around $2 billion (with a "b") to treat every TDCJ prisoner with Hepatitis C if, say, courts ever ruled the state is obligated to provide the treatment as part of its basic standard of care for the disease. (When the state chooses to incarcerate someone, it assumes responsibility for their healthcare, federal courts have consistently found.)

All that to say, increasingly there are pragmatic public health and budgetary reasons, and perhaps even a bit of political momentum thanks to the Ebola scare, for the Lege to take a more expansive view toward the merits of preventive public-health strategies. Susan Reed is gone, or is about to be, and McLendon's permissive, local-control approach would let needle-exchange pilots happen in a way that would insulate legislators from on-the-ground decisions by local officials.

Texas Republicans should support local, pilot needle-exchange programs for the same reason Margaret Thatcher did: The public interest in disease prevention outweighs whatever principled disdain for addicts one might harbor. The election is over. It's time to govern.

Thursday, November 20, 2014

How times have changed: Reed gone in Bexar, McCrum cleared

How quickly circumstances can change. Readers may recall this post from February suggesting that Bexar DA Susan Reed sought contempt charges against attorney Michael McCrum (for allegedly telling a witness to "get lost") in retaliation for court filings in other cases alleging misconduct by Reed and her office, including an alleged (and denied) sexual affair by Reed herself with a defendant in one of his cases.

Since then, somewhat unthinkably, Susan Reed has been voted out of office while McCrum, somewhat less surprisingly, rose to statewide prominence as special prosecutor against Gov. Rick Perry (about which, still). However, it's not for that reason but to update that February post that Grits reports news that, "The special prosecutor in the criminal case against Gov. Rick Perry was cleared Monday in San Antonio of an unrelated contempt of court charge against him," according to the Austin Statesman, referring to the above-mentioned allegations by Reed, now a lame duck, against McCrum.

So that completes the loop on that. With this ruling delivered right after Reed's ouster at the polls, she's no longer in a position to threaten either McCrum nor the apostate judge who failed to follow her dictum. Perhaps her replacement will be no better, but in the small world of Texas criminal justice, her departure remains a seismic shift. And the vicissitudes of Fate continue to mock all who offer certain predictions.

Wednesday, November 19, 2014

Pricetag for DPS, Texas National Guard border adventure approaching one billion dollars

So, lame ducks Rick Perry and David Dewhurst plan to commit the state to spending $86 million to continue the much ballyhooed border surge until August. Reported the Texas Tribune, "Gov. Rick Perry announced Tuesday that he, House Speaker Joe Straus and Lt. Gov. David Dewhurst had reached an agreement that will cost about $86 million. If approved by the Legislative Budget Board, that spending will not need a green light from incoming lawmakers, who are set to gavel in in January."

And how to pay for it? "Perry said in the statement that the funding will include $13.7 million from the state’s disaster funds, $47.9 from the Texas Department of Transportation's general revenue bond fund, $7 million from the state's Emerging Technology Fund and $17.5 million from the Texas Public Finance Authority."

This proposed commitment of revenue outside the Appropriations bill by the Legislative Budget Board demonstrates exactly what's wrong with spending so much money on redundant and unnecessary border security measures in the first place: It's cost so much the money must be diverted from other necessary government functions, in this case spending on disaster response, roads, emerging technology, and state-owned facilities.

There's been much talk of a constitutional amendment to limit state spending but little talk of what should be cut. Grits fails to see a single state priority in the budget that's outweighed by the massive, on and off-budget ballooning of frankly frivolous border security spending in recent years. How much are we talking about? Lt. Gov. David Dewhurst told the Tribune that:
“The reason to continue the border surge through the end of the fiscal year, which is Aug. 31, is because some of the newly elected officials may not be focusing on the fact that it's undoubtedly impossible to get a two-thirds vote in both chambers to continue it,” he said. “And once you don't get a two-thirds vote for immediate effect, the surge will stop, we'll have business as usual for the cartels and the $850 to $900 million that we just spent will be all for nothing.”
What could have been done with an extra $850 to $900 million over the last few years? If you spent every dime of it on transportation upgrades it wouldn't be enough, but it'd fill a lot of potholes. Ditto on school finance, health care, universities, or a half-dozen other investments one could name.

In the criminal-justice realm, that's more than enough to have simply eliminated the Driver Responsibility surcharge and funded hospital trauma centers out of the general fund. Or it could have provided more treatment and diversion programming to support local probation departments and helped the state close more prisons. If it'd been spent on some combination of diversion programming and improved guard pay, maybe TDCJ wouldn't face the understaffing crisis that presently besets it.

The border surge was for the most part a policy decision made outside the legislative process by a handful of state officials who are now exiting public service. It was approved after the fact as a fait accompli, though never really interrogated on its own merits as a budget priority before now. Clearly Dewhurst doesn't think there's sufficient support for a two-thirds vote (an assessment which frankly surprises me), so they want to lock in the spending specifically because they don't think it has sufficient political support in the Legislature. Fascinating.

The Austin Statesman added that the agreement between Perry, Straus and Dewhurst was subject to approval at a Legislative Budget Board meeting Dec. 1st, but if past is prologue, that's probably a rubber-stamp formality. It's truly remarkable how much money Texas has spent on this misbegotten border adventure with so vanishingly little to show for it.

UPDATE: The Austin Statesman followed up with a report that the National Guard deployment will only last through the end of March, pointing out that the initial statement on Tuesday "left the impression that the Texas National Guard, deployed by Perry in July, would continue to be an integral part of the enhanced border enforcement effort through the end of the fiscal year" in August. According to the Houston Chronicle, Dewhurst yesterday acknowledged the Guard will "wind down" its presence while the DPS "surge" will continue through August, if the LBB approves the agreement.

So Straus cut a slightly tougher deal with his lame duck counterparts than had been initially reported, though the overall total spent on misguided border security still speaks to off-kilter priorities when one considers the opportunity costs regarding what could have been accomplished with such large amounts of money.

Trying, in vain, to care about Rick Perry criminal charges

I've tried to feign interest in Rick Perry's indictment and the news that Judge Bert Richardson for now will allow the case to go forward. Really. Half the Austin press corps seems to be following the involved lawyers around like a gaggle of groupies, so it must be Very Important. It's just that my efforts have been hindered by my not caring so profoundly.

As governor, Rick Perry is on his way out and though Grits wishes him well, I don't particularly anticipate his ascension to the presidency, whether or not the charges stick. (Hell, in a Republican primary, strong-arming a drunken Democrat might boost his street cred!) Meanwhile, his alleged victim, Rosemary Lehmberg, is a lame duck DA and local laughingstock/punchline who will not run again in 2016. (I wouldn't wish what she's gone through on anyone but she brought it on herself.)

It's a circus. It's a spectacle. But it doesn't really matter.

TDCJ plans to let inmate marriages resume

Once new rules are in place, Texas inmates will again be allowed to marry while they're incarcerated, but this time they'll do so in person, not via proxy as in the past. The report from AP (Nov. 18) on the topic began:
Texas plans to allow marriage ceremonies inside prisons between an inmate and an intended spouse who isn't incarcerated, officials disclosed Tuesday.

Inmates in Texas historically have been allowed to marry by proxy, meaning someone stood in for the prisoner at a ceremony held somewhere other than the penitentiary. But a state law that took effect a year ago and requires both parties be present for a marriage ceremony has had the unintended consequence of halting proxy marriages in Texas prisons. At the same time, U.S. Supreme Court rulings have upheld prisoners' right to marry.

State prison officials said they're framing the new rules now.

"Given the restrictions and understanding offenders have a legal right to marry, the agency is drafting a policy that allows an inmate to marry a non-incarcerated person within our facilities," agency spokesman Jason Clark said.
The story included a few details about how the new system would work:
According to the plans, the marriages would have to comply with prison visitation rules, be consistent with the prisoner's visitation status and require no special amenities.

For example, a death row inmate is not allowed any outside contact. While the inmate could get married under the new policy, the prisoner still would be separated by glass and be allowed no contact with a spouse.

Rules already on the books don't allow conjugal visits.

The spouse would have to obtain the marriage license, make arrangements for someone to conduct the nuptials and be responsible for any payment to that person. Prison chaplains would not be involved, Clark said. Attendance would be limited to the offender, the spouse and the person conducting the ceremony.

"Some of the other details are still being worked out at this point," he said.
RELATED: See this interesting, related story from The New Statesman.

Tuesday, November 18, 2014

More criminal justice bills pre-filed at the Texas Lege

Here are a few more bills (see here, here, here and here for earlier installments) from the first week of pre-filing at the Texas Legislature that may merit Grits readers' attention:

Can prison spending be limited to population/inflation growth rates?
There are a couple of bills out there to restrict state spending to the combined effects of inflation and population growth, like this one, so it's worth mentioning that state prison spending has far surpassed those rates consistently for more than three decades. Also, there's a basic math problem with a constitutional amendment proposed by rookie Sen. Charles Perry limiting budget growth to the sum of inflation and population growth (or personal income growth, whichever is lesser). However, to actually index spending you would multiply those rates, not add them. Over time, his method would systematically under-fund the budget if not corrected. Perhaps if legislators want a smaller budget, they should propose cuts instead of constitutional amendments.

Whither border security funding if highway money spent on highways?
Also on the budget front, SB 139 by rookie Sen. Charles Perry and SB 184 by Sen. Charles Schwertner would cease using money from the state highway fund to finance the Department of Public Safety. The questions then become: Where does DPS funding come from? And, is their border security profile sustainable without tax increases?

How to raise local property taxes everywhere
HB 191 by Rep. Jim Murphy creating mandatory minimums for people convicted of multiple misdemeanors would launch a new 21st century jail building boom in Texas. County commissioners and Sheriffs, if they're wise, will come out of the woodwork to oppose this. In many counties in recent years, rising jail costs have been the primary driver for local property tax increases.

Record custodial interrogations
State Sen. Rodney Ellis has once again filed legislation to require recording interrogations of people suspected of serious, violent offenses. Make me philosopher king and I'd require recording of all custodial interrogations, but this is a good start. Last session state  Rep. Terry Canales carried  companion legislation in the House and Grits expects him to file the bill again in the 84th session.

Prioritize saving lives over prosecution in overdose cases
Rep. Ryan Guillen put forward a version of a Good Samaritan bill, HB 225, to make it a defense to prosecution on drug charges for people who call 911 when someone they're with overdoses. There have been several versions of this kicking around over the years. Last session a version cleared committee but, like many criminal justice reform bills, never received a vote on the House floor.

Grants, policies for police bodycams
In 2003, state Sen. Royce West carried legislation that created a grant fund for police departments to apply to install dashcams in patrol cars, and most of them did. Now he's filed SB 158 which would authorize the state to issue grants for police body cams and requires those using them to create written policies that govern their use and train on them. The difference between this and the one authorizing dashcams is that in 2003, Sen. West also passed a measure authorizing a statewide bond election for money to pay for them (which voters approved) and requirements for racial profiling reporting that were more stringent if departments didn't have cameras in their cars. This bill presently includes neither as many carrots nor sticks as his earlier legislation. For body cams to be adopted as widely as dashcams, there'd need to be a pot of money to fund these grants and some incentive for departments to use them.

No probation for illegal immigrants?
In SB 174, Sen. Joan Huffman recommends that "illegal aliens" be denied the chance to receive community supervision as a punishment, another potential budget buster for both state prisons and county jails. If this bill doesn't receive a gigantic "fiscal note" it will be proof once and for all that the Legislative Budget Board's mechanism for assessing bills' fiscal cost is utterly and profoundly broken.

Harsher punishments for 'official oppression' by police: Would it help?

Grits opposes most penalty enhancement bills and I may end up being against this one after I've given it sufficient thought. However, with police unions poised to go after the Smart on Crime agenda, I'm at least glad to see legislation filed that will keep them occupied some of the time next session playing defense. State Rep Borris Miles filed HB 265 increasing penalties for "official oppression" from a Class A misdemeanor to a third degree felony if the public servant in question was a police officer who "knowingly caused bodily injury to another."

(That oughtta rile the unions up more, even, than Jon Stickland's proposed HB 137 limiting government grants to law enforcement groups that lobby at the Legislature.)

At times, prosecutors have pled serious assault cases against officers down to Class A misdemeanor official oppression as sort of a place-holder to avoid pursuing more serious offenses that would get you or I charged with felony assault or worse. So I certainly understand Miles' frustration. Even so, arguably the public would be at least as well or better protected by altering the civil service code to make it easier for police departments to fire bad cops and empower the Commission on Law Enforcement to keep them from being re-hired elsewhere in Texas if they engaged in serious misconduct.

Prosecutors can always find a lesser charge to plead down a case and will find something else if misdemeanor official oppression is removed from their toolkit (e.g., misdemeanor assault). As much as one might like to, I don't see how it's possible to legislate away the discretion of elected District Attorneys to exercise routine lenience toward criminal defendants employed by police departments. The punitive impulse is not a pragmatic one.

That said, another piece of Miles' legislation, HB 270, would make official oppression complaints subject to the Public Information Act in Dallas and Houston (cities over two million) and require their retention as long as the officer as employed. That's a fine idea that IMO needn't be limited to the state's biggest cities.

Monday, November 17, 2014

Whitmire would eliminate 'key man' system for grand juries

State Sen. John Whitmire has filed a bill, SB 135, which would fundamentally alter the grand jury system in Harris and other Texas counties by abolishing the "key man" system and requiring that grand jurors be selected from the regular jury pool.

This would eliminate the perception of insider baseball among the courthouse set when it comes to securing indictments. I'll be interested to hear the arguments that come out against it. The key-man system has been abandoned in most of the country and is at this point an anachronism.

See earlier coverage of the issue from the Texas Tribune, from Texas Monthly, and an excellent series on the topic by Lisa Falkenberg at the Houston Chronicle (behind paywall) from over the summer:

Correction: Erroneous post removed

This morning I'd briefly posted an item that utterly misread a piece of legislation filed by state Rep. Jeff Leach, mistaking a reporting requirement on asset forfeiture for a more substantive procedural barrier. Very soon after posting it I realized my error and took it down. For the few who saw it, my apologies. I'll include a more accurate summary in a later roundup of new bills filed but my initial assessment was wrong.

Time for more sensible laws on low-level drug possession

State Rep. Senfronia Thompson has filed a pair of bills recommended by a bipartisan majority of Harris County district judges, led by Judge Michael McSpadden, to reduce the penalty category for low-level drug possession. HB 254 would change the crime of possession of less than a gram of a controlled substance from a state jail felony to a Class A misdemeanor, a switch that would save the state money on incarceration and reduce the burden on felony district courts, which handle a vast number of these relatively petty cases.

Meanwhile, Thompson's HB 253 would make possessing .02 grams or less of a controlled substance not a crime at all. The logic here is that unless there is at least that much available, crime labs use up all the sample during testing and none is left available for potential defense testing, which is a requirement under the U.S. Supreme Court's Confrontation Clause jurisprudence.

HB 253 is basically a Harris County specific bill. We're mostly talking about situations in which officers seize a crack pipe or other paraphernalia and send it to the crime lab to get scrapings to prosecute for drug possession, since possessing the paraphernalia is only a Class C misdemeanor. But the defense bar in Harris County pleads these cases out instead of demanding evidence be independently tested, resulting in thousands of felony convictions over the years for something that elsewhere would warrant a ticket, or nothing. Ending this ridiculous practice would also free up resources at overworked crime labs. Though it shouldn't be necessary, HB 253 is a really good bill.

Sunday, November 16, 2014

Dallas considers opening levees to invited graffiti

Dallas has been tepidly experimenting with the idea of "free walls" for graffiti artists (see prior Grits coverage) to divert them from private property, reported the Dallas News (Nov. 15), but the real game changer could come from a different government source. The story concluded:
The Police Department’s experience with graffiti is one that Trinity Watershed Management has been watching closely as it seeks ways to mitigate vandalism on the bridges over the river, said Dhruv Pandya, the watershed’s assistant director.

Street artists were allowed to paint the underside of the Commerce Street bridge during the city’s last Trinity River Wind Festival. For Pandya, that has meant a slight change in attitude as he looks at ways to allow street painting legally — and to keep it only where it’s allowed.

“We have 30 miles of levees and we have concrete structures,” he said, “and there’s nothing but gray.”
Bingo! Grits has been advocating just such an approach: allowing graff artists to decorate blank portions of the urban landscape, both publicly owned sites like drainage culverts, highway supports, and even the backs of street signs and, where permission can be obtained, on private property in the vein of the Cardiff Empty Walls festival. (I'd also like to see arts re-emphasized in schools, but that's another subject.) By comparison, the cost-benefit analysis underlying an enforcement-only, arrest-and-incarcerate model makes no sense at all. Remove the emotionalism and tribal disdain and there are ways to manage this millennia-old problem that address concerns of property owners, but it won't be resolved by cops, courts or ever-more criminal penalty enhancements that never worked before and won't work now.

Saturday, November 15, 2014

Roundup: Police misconduct, jails and taxes, and the vicissitudes of 'Right on Crime'

Here are a few items which didn't make it into individual posts this week but merit Grits readers' attention:

TDCJ has confiscated 1,400 weapons in 2014
The Texas Department of Criminal Justice confiscated 1,400 weapons from inmates so far in 2014, reported the Houston Chronicle. In 2013, the total was about 1,700. The problem is exacerbated by understaffing.

County jails and local property taxes
County jails drive county property tax increases and pit Big-Government Conservatives with the small-government variety, which is why the debate over jail expansion in Johnson County has been so divisive.

Ruh Roh
The feds are auditing outgoing Dallas DA Craig Watkins' asset forfeiture funds.

Bicyclist's helmet cam captured deputy's misconduct
Civil litigation in Dallas over a trumped up arrest by DCSO (for which the officer was ultimately suspended for 38 days) was made possible by the bicyclist's helmet cam.

ISD cop asked to smell woman's feet, underwear at traffic stop
Here's one of the creepier examples of police misconduct I've recently run across. What are ISD cops doing making traffic stops, anyway?

Corrupt Hidalgo Sheriff's commander sentenced
Former Deputy Commander Jose Padilla was convicted of taking bribes and allegedly dispatched deputies to scare off rivals of the Gulf Cartel, a role that earned him an eponymous narcocorrido. He was sentenced to 38 months in federal prison.

Stingrays on drones, in your town
Local police departments are using IMSI catchers (fake cell phone towers with the trade name "Stingrays"), and the US Marshals Service has attached a version of an IMSI catcher called a "dirtbox" to drones, gobbling up millions of people's metadata to hunt for fugitives.

Will Illinois go 'Right on Crime'?
The new Republican governor in Illinois thinks their prison system is "broken," holding that the state hasn't “properly staffed and invested in our correction system” and imprisons too many “non-violent offenders” while failing to provide them with “ways to get back into society and become productive citizens.”

Were elections death knell for bipartisanship on criminal justice in D.C.?
Federal sentencing reform may be stalled by the elevation of Chuck Grassley to chair of the Senate Judiciary Committee, Slate reported. A depressing development; maybe the Right on Crime folks can help win him over. I don't care if he votes against it, but the fear is he'll refuse to give the bill a vote.

Progressive policing model
Every city council member in the state should read this article on improvements to policing practices in Milwaukee. I was particularly impressed with the idea of having cops visit folks during the reentry process to offer assistance with housing, employment, etc.. That's truly "smart on crime." We lock a lot of folks up but release a ton of them too. Every year Texas releases almost twice as many prisoners as TDCJ housed en toto when Ann Richards was in office. You can't lock folks up forever and, to solidify crime reductions in the long term, those leaving prison must abstain from new offenses.

Understaffing at Texas prison units reaching crisis levels

Regular Grits readers won't be too surprised by the news, but the Texas Tribune published a story this week on the growing under-staffing crisis at rural Texas prisons, with Brandi Grissom making a cameo appearance on her old employer's site. The gist:
Turnover among corrections officers has been on the rise statewide since 2006, according to department data. And in South Texas and other oil-rich regions in the state, where the energy boom has sparked an explosion of high-wage job growth, finding and keeping prison employees has become difficult.

The desperation to retain employees has prompted an unusual approach at one South Texas prison unit, which is offering dirt-cheap on-campus housing — as low as $25 a month — to make the cost of living in such nouveau riche communities manageable for its employees. And Department of Criminal Justice officials plan to offer similar options at prison units across the state in oil-rich regions. 

Such recruiting tools are fast becoming a necessity. At the William G. McConnell Unit in Beeville, the turnover rate skyrocketed from 28 percent in 2006 to 62 percent in 2012, according to Department of Criminal Justice data. As turnover spiked, so did the rate of violent incidents in the prison, growing from about 12 incidents per 100 inmates in 2006 to more than 30 incidents per 100 inmates five years later. It’s a trend mirrored at other prison units across the state that are near shale deposits and the refineries that process the oil harvested from them. ...
It’s not only about the money; officers and prison condition experts say that the difficult working environment guards face contributes to their high turnover rate. That high turnover rate creates a domino effect that makes it even more difficult to retain prison staff: The remaining officers must put in longer hours, and the lower guard-to-inmate ratio means violence among offenders grows.  ...
The Department of Criminal Justice currently has 3,304 corrections officer vacancies throughout its 109 prison units, even after the closure in 2013 of two privately run facilities. Statewide, the agency has left roughly 1,400 prison beds empty since 2012 because of staff shortages.
State Sen. John Whitmire articulated what to me is the obvious conclusion, one endorsed by the prison guards' union: That Texas operates too many prisoners incarcerating too many people who don't need to be there.
While increased pay would help to retain some prison staff, Whitmire said, the long-term solution is one Texas is already working toward: significantly reducing the prison population, which currently stands at about 150,400.

Ensuring that prostitutes, the mentally ill, drug addicts and alcoholics find their way to community-based treatment programs instead of prisons, Whitmire said, would save taxpayer dollars and reduce the need for corrections officers.

“Compensation would help, but it’s a bigger picture than that,” he said.
That's exactly correct. Grits strongly supports improving CO pay, but the hard reality is that the Republican-controlled Legislature will be looking to cut the budget, not increase pay for the state's largest single category of employees. In that light, the best way to boost guard compensation is to pay for it with savings from reduced incarceration, closing more prisons, perhaps eliminating more private prison contracts, and targeting units for closure where the staffing crisis is most severe. To get there will require sentencing reform.

Friday, November 14, 2014

Contractors press behind the scenes to preserve profitable contracts with Dallas justice system

A coupla stories about vendor contracts in Dallas caught my eye. At the county level, Texas Lawyer reported (Nov. 10) on Dallas County Judge Clay Jenkins' failed attempt to halt a "high profit" jail contract with Securus for provision of phone service, though he did succeed in preserving in-person visitation at the jail, at least for now.  The article closed with news that the FCC may soon end profiteering off jail phone calls:
The outcome "illustrates the incredible power" that companies like Securus have over public officials nationwide, when they offer potential revenues for local governments from jail calls, Jenkins said.

Richard A. "Rick" Smith, CEO of Securus, did not return a call for this story by press time. A press release posted Oct. 31 on the company's website states that in the past 10 years Securus "has collected and remitted to jails, prisons and state, county and local governments over $1.3 billion in the form of commissions. Commissions are collected from inmates and their family and friends on outbound telephone calls that Securus completes over its proprietary inmate calling platform. The Federal Communications Commission (FCC) eliminated commission payouts on interstate long distance calls effective Feb. 11, 2014, and will likely eliminate or significantly reduce intrastate commissions early in 2015 in an effort to reduce calling rates, provide more affordable calling and reduce recidivism."

The release quotes Smith, who states: "Clearly these commission payments that have been used to fund critical inmate welfare programs and support facility operations and infrastructure have improved the lives of inmates, victims, witnesses and individuals working in the correctional environment, and helped to fund government operations. And it appears, sadly, that regime may come to an end in the not too distant future. …We have been a vocal advocate of maintaining commissions and have spent approximately $5 million in legal fees and other costs on behalf of our facility customers over the last decade to maintain commissions, but the FCC maintains that it is not good public policy to have the poorest in society help to fund government operations, even though the programs funded are worthwhile. … If commission payments are eliminated or reduced—we are advocating a transition period that will allow our facility customers to secure funding from other sources or some type of phase-in of the new rules so as not to impact our facility customers—that phase-in is important and we have discussed that with the FCC on numerous occasions."
It's a virtual certainty Dallas isn't the only county in Texas that would be forced to readjust phone contracts if the FCC says they must cease mulcting inmate families for in-state phone calls. Lots of jails have similar, profit-centered phone contracts, quite a few with Securus. (See more from the Unfair Park blog about the video visitation issue.)

Meanwhile, the Dallas City Council narrowly voted 8-7 to change contractors for court collections, reported the Dallas Morning News (Nov. 12), snubbing a vendor who'd contributed significant sums to 12 out of 15 decision makers. The article opened:
The Dallas City Council narrowly approved a staff recommendation Wednesday to hire a new company to collect delinquent municipal court fines.

In an 8-7 vote, the council awarded the contract to Municipal Services Bureau. Alone among six bidders, MSB guaranteed the city that it would collect from deadbeats — $21.9 million over three years. If collections fall short of that target, the company said, it will pay the difference out of its pocket.

Some council members wondered how MSB could make such a promise when no one else did. And some praised the work of the current collector, the law firm of Linebarger, Goggan, Blair & Sampson.
Linebarger’s bid was ranked third by the city staff. The firm, which has been in the collections business for more than 35 years, is known throughout Texas for its political connections. It has donated thousands of dollars to City Council members, including Mayor Mike Rawlings.

Of the 15 council members, 12 have received money from Linebarger. The three who have not are Jennifer Staubach Gates, Sandy Greyson and Lee Kleinman.

Those three voted to accept the staff recommendation and award the contract to MSB, as did Rawlings, Rick Callahan, Scott Griggs, Sheffie Kadane and Philip Kingston.

Opposing the MSB bid were Jerry Allen, Monica Alonzo, Tennell Atkins, Dwayne Caraway, Carolyn Davis, Vonciel Jones Hill and Adam Medrano.
One notices MSB doesn't guarantee collections for the Driver Responsibility surcharge, where around 60 percent of assessed charges go uncollected.

Thursday, November 13, 2014

Public cares more about shot dogs than people, says Austin police monitor, and other stories

Just to clear my browser tabs, here are a few odds and ends that deserve readers' attention while I'm focused on work projects:

Austin police monitor: Public angered more by cops shooting dogs than people
Grits didn't see it when it aired but couldn't help but laugh at this clip from Jordan Klepper at the Daily Show about Austin PD training officers to avoid shooting dogs, with the Police Monitor declaring the public appears to care far more when a dog is shot than a person. That sounds about right.

CURE chair profiled
The Texas Observer has a profile of Josh Gravens, the young new chair of a venerable prisoners' advocacy group - the Texas Citizens United for the Rehabilitation of Errants (CURE). I had a previously scheduled conflict and couldn't attend their recent rally, held along with TIFA and Texas Voices, but I'm glad to see CURE active and infused with some new blood.

'How churches can attack the prison pipeline'
See Dallas News coverage of the "National Prison Summit on Incarceration, a multidenominational church-sponsored gathering."

Video visitation at Dallas jail won't stop face to face visits
Dallas County will begin video visitation at the jail, but the commissioners court wisely insisted that face to face visits must continue. Pretty expensive: $10 for 20 minutes.

Solitary confinement meets public schools
Ever heard of schools using "seclusion rooms" for misbehaving students? New to me. See here and here.

A conservative case for reining in prosecutor misconduct
A blogger out of Tyler identifying himself as part of the "conservative resistance" riffed off of a recent Grits post to make the argument for more harshly punishing prosecutor misconduct, overviewing some of Smith County's most infamous scandals and the habitual, circle-the-wagons response by local officials.

Tuesday, November 11, 2014

Notable TX criminal justice legislation from the first day of bill filing

Yesterday was the first day of bill filing for the 84th Texas Legislature which convenes in January. It should be said; filing early offers no inherent benefits except, perhaps from publicity and giving advocates more time to work the bills. But the bill filing deadline isn't until March 13 and most bills will be filed closer to that deadline, especially with as many rookie legislators as we'll have this go-round. Anyway, here are a few interesting looking criminal justice bills that jumped out at me from yesterday (see the full list of bills filed Monday).

Abolish the Driver Responsibility surcharge
State Sen. Rodney Ellis filed legislation, SB 93, to repeal the driver responsibility program, expanding requirements for driver education coursed for folks with multiple violations in its stead. I expect similar House legislation to be filed, probably by Larry Gonzales (R-Round Rock), who filed it last session. But they're really not going to solve this problem without identifying an alternative revenue stream for trauma hospitals.

Cops as bill collectors?
State Rep. Allen Fletcher wants cops to carry credit card swipers with them at traffic stops so they can accept payment for a ticket there on the spot instead of having the courts assess and accept Class C misdemeanor fines (HB 121). Certainly that would remove any pretense that traffic enforcement is about public safety as opposed to mulcting drivers in the name of revenue generation. Due process is still a guaranteed, constitutional right, though, even if as a practical matter it's become a pretense in most of the millions of Class C traffic cases every year. This idea seems like it's taking several long strides down a slippery slope.

Tent jails redux
HB 161 by Rep. Lyle Larson would allow counties to house prisoners in tents a la Joe Arpaio in Arizona. Sombody files this every year, but it's hard to see it going anywhere while the litigation at TDCJ over excessive heat is still pending - if those court rulings go against the state they'd just be doubling down on their troubles by passing this.

Don't remove statute of limitations in non-DNA rape cases
Several bills filed, all by Democrats, would remove the statute of limitations for rape in non-DNA cases, a terrible idea that will result in more false convictions. These bills are providing backup to some ill-considered Wendy Davis demagoguery from the campaign that should be swept aside as decisively as her political ambitions. This is bad public policy: Statute of limitations exist for a reason and a fair trial can't be had decades after the fact without forensic proof.

Sex pics criminalized if shared with others
State Rep. Ryan Guillen filed a bill making disclosure of photos depicting sexual conduct a state jail felony if the subject of the photo has not consented (think so-called "revenge porn"). I'll be interested to hear what First Amendment experts like Mark Bennett think about the idea. The Lege has lately seen a couple of other, related statutes struck down in the courts because they painted with too broad a brush and HB 101 seems cut from the same cloth.

Improper Photography 2.0
Rep. Jose Menendez filed a much narrower version of Texas' improper photography law (HB 147), which was recently, unanimously overturned by the Texas Court of Criminal Appeals. I'd have to compare it more closely to the court decision, but he appears to be trying to limit the bill to its confies. (Note to Mark Bennett: Whaddya think?)

Back again on texting while driving
Several members, led by former Speaker Tom Craddick (HB 80), want to ban texting despite the fact that states which enacted such bans saw distracted driving crashes increase (people still use their phones, they just hold them in their laps making the process less safe). This has a shot because, though Perry vetoed it before, we now have a new governor.

Increase burden of proof on asset forfeiture
Sen. Chuy Hinojosa filed a good, incremental bill increasing the burden of proof in asset forfeiture cases from "preponderance of the evidence" to "clear and convincing" (SB 95)

'Raise the Age'
Rep. Ruth McLendon Jones and Sen. Hinojosa both filed legislation (HB and SB, respectively) to raise the age of adult criminal liability from 17 to 18 years old. Part of me wished for Republican sponsors on this - maybe they can bolster support by garnering R joint and co-authors - but for a variety of reasons the issue may have legs this session no matter who is carrying it.

Drug diversion
On the de-incarceration front, state Sen. Rodney Ellis filed SB 82 to expand use of community supervision for possession-level felony drug crimes. And Hinojosa has one to mandate that people convicted of serious felonies are released to supervision instead of being released directly from prison unsupervised (SB 99). Lots of Republicans were talking along the same lines during the interim; we'll see if anything comes of it.

Truancy reform
John Whitmire has a bill (SB 106) to reduce the burden of truancy violations but which falls short of decriminalizing truancy as experts and advocates have proposed. In the House, though, Rep. James White filed a bill to eliminate the offense from the books altogether (HB 93). If that doesn't fly, White has another bill (HB 107) that would make the max penalty for truancy $20, far below Whitmire's thresholds and perhaps so low it's not worth the courts' time to process. And he filed HB 110 which would eliminate judges' ability to jail defendants found in contempt for failure to comply with ordes to attend school. So there's no clear consensus yet on how they'll do it, but folks are clearly hoping to address the truancy issue this session.

Limit grants to 'peace officer organization' engaged in politics
Jonathon Stickland filed a bill (HB 137) to ban state grants to "peace officer organizations" if they lobby or operate a PAC. I don't know what grants they get, but that oughtta get CLEAT and TMPA hot under the collar.

Ban red-light cameras
Stickland also filed HB 142 which would ban red-light camera enforcement systems as well as speed cameras. He's not the first to try, but I hope he succeeds.

Legalize the Bowie knife
That's the effect of Rep. James' White's HB 92. One would still be forbidden from owning a "dagger," "dirk," stiletto," and "poniard." I must say, if we're going to let folks carry guns virtually everywhere (and despite naysayers' criticisms, murder rates have fallen as that trend has grown), I fail to understand such sweeping restrictions on knives or why Second Amendment crowd hasn't insisted that the right to bear arms applies equally to daggers, poniards and Bowie knives as assault rifles and handguns. Maybe that's beginning: Last session the Lege legalized switchblades. A related bill by Jon Stickland (HB 172) would prevent municipalities from regulating knives, stunguns, and personal defense sprays.

'Nuther try for an innocence commission
Rep. McLendon and Sen. Rodney Ellis filed bills to create a special commission to study the causes of wrongful convictions and recommend reforms (HB 48 and SB 81). Last session a similar bill passed the House but failed to make it through the senate. Said McLendon in a press release, "This is not an issue of party politics; it is an issue of ethics. At every stage of the criminal justice process, we have a moral and legal responsibility to assure that no innocent person is convicted while a truly guilty one goes free." According to the release, "primary tasks of the commission would be considering solutions and methods designed to correct errors and defects in the system by changing state rules, regulations, procedures and legislation."

* * *

This isn't a comprehensive list but just the stuff that immediately jumped out at me. See the full list from yesterday, and more bills will be filed today.

Monday, November 10, 2014

How graffiti artists can ingratiate themselves with the community

Awesome graffiti idea out of Chicago, if we can stretch the concept to call it that; an upgrade from an earlier, sarcastic version. Not quite as warm and fuzzy as these gals from Houston, but it certainly opens up, or rather fills up, new spaces in the urban canvas. I bet nobody complains!

BTW, since we're on the topic of graffiti, Cardiff, Wales sponsored something called the Empty Walls festival in which skilled graff artists were invited to fill up large, plain walls with enormous murals. Though press coverage naturally focused on an engorged horse penis that drew complaints in one of numerous murals (and was apparently altered by the artist to geld the offending animal), most of the art I've seen from the event was pretty great. See a few examples below the jump:

Sunday, November 09, 2014

What goes on at prosecutors' Mardi Gras parties?

It may be just as well Dallas DA Craig Watkins lost his re-election bid. His enemies received new ammunition to use against him last week in the form of an audit assessing how he operated his asset forfeiture fund. Watkins had the audit's release delayed until after election day, and one can see why. The Dallas News' Jennifer Emily reports that there are plenty of unanswered questions to pursue. Her Nov. 7 story opened:
An annual audit of Dallas County District Attorney Craig Watkins’ forfeiture fund listed more than a dozen expenditures where it is “unclear” if the payments were used for law enforcement purposes as required by state statutes.

The examination of the forfeiture fund, conducted by county auditor Virginia Porter, is slated for discussion Tuesday by county commissioners.

Debbie Denmon, Watkins’ spokeswoman, referred questions about the audit Friday to prosecutor Lincoln Monroe, who frequently approves forfeiture fund payments. Monroe could not be reached for comment.

Watkins, a Democrat, lost his bid for a third term Tuesday to Republican Susan Hawk. She along with others have criticized how Watkins has used the forfeiture fund, which consists of money and assets seized in criminal investigations.

Watkins, though, has defended its usage, claiming that he has broad authority over the fund, which typically has hundreds of thousands of dollars.

The audit was originally supposed to be filed days before the election. But the DA’s office obtained an extension, according to county documents.
As to the specifics
The largest potentially questionable expenditure is a $47,500 settlement the district attorney’s office made with a man Watkins rear-ended in February 2013 on the Dallas North Tollway. Such settlements typically go through county commissioners. The settlement to the driver and his attorney included requiring that they could not talk about the crash or their agreement.

Among the other items Porter listed as “unclear” were the purchase of $683 worth of Mardi Gras beads for the community prosecution unit, $1,935 in lapel pins, cufflinks and wristbands, fees and T-shirts for the district attorney football league and parade fees.

[County Auditor Virginia] Porter did find that Watkins’ spending of $14,000 for outside counsel was in compliance. He used the money on attorney fees after he was held in contempt for refusing to testify at a hearing in March 2012 where he was accused of prosecutorial misconduct. He was later acquitted.
So it's okay to use asset forfeiture funds to defend against prosecutorial misconduct claims but not for office swag, Mardi Gras beads, or for settling personal civil litigation without approval from the commissioners court.

Mardi Gras beads? Really? One would have thought after the meme about the Texas DA who bought a margarita machine with asset forfeiture funds went viral (even Jon Oliver recently did a bit on it), DAs would use a bit more discretion. The accident settlement is a bigger deal, but the idea of a prosecutors' Mardis Gras party really is too juicy for pundits to pass up punchlines ("Ladies in the misdemeanor section, show us your tits!") if the issue dragged out for long.

I'm not a lawyer, but in the end I'd guess the broad statutory language regarding a DA's discretion over spending from asset forfeiture funds - along with the fact that, once he's out of office, there will be little political point in pursuing him - means Watkins will likely face no real consequences over this. Had he won, this emerging, potential scandal could have dominated DA office politics for the next year or two. Out of office (especially if he eschews running again), there's not much they can do to him. With the FBI reportedly sniffing around the settlement episode, voters' rejection may turn out to be a blessing in disguise.

In many ways I feel bad for Craig Watkins, whose pioneering work with my employers at the Innocence Project of Texas on DNA exonerations promoted him to national fame during his first term. His office modeled open file policies, even for habeas corpus writs, well before the Michael Morton Act. And his agents at the Legislature supported most of Texas' recent innocence reforms.

But Watkins was the author of his own undoing, felled by hubristic ambitions to become kingmaker in local Democratic Party politics. I'm grateful for all he did to change the terms of debate in Texas around DNA exonerations and innocence issues. But the part of me that worked for 14 years as a political consultant understands full well why voters showed him the door. A regrettable outcome after a promising start.

Good luck Craig, in whatever you do next.

Friday, November 07, 2014

TDCJ: Prison healthcare needs $178 million more to meet 'minimum standards'

According to TDCJ's Legislative Appropriations Request for FY 2016-17 (large pdf), the agency needs an extra $174.8 million over the next biennium beyond current funding to meet "minimum standards." From the memo from executive director Brad Livingston at the front of the budget:
According to university providers, additional funding of $174.8 million is critical to maintain operations and ensure effective overall quality of care within the system and deliver the level of services required by minimum standards. Of this amount, an estimated $84.9 million is required to bring the FY 2016-17 funding to the projected level of expense incurred for the delivery of services currently provided. University providers are encountering significant difficulties in the ability to recruit and retain the professional staff necessary to provide care at TDCJ correctional facilities. Therefore, $59.4 million is included in this request to provide market level adjustments (5% in FY 2016 and an additional 5% in FY 2017) to the salaries of the direct offender health care delivery staff. The correctional health care system is also facing critical capital equipment needs for x-ray units, dialysis machines, dental chairs, hospital beds, and other equipment with estimated cost totaling $6.7 million. Other initiatives at a cost of $23.8 million will provide primarily for the hiring of nursing and key health care staff to increase coverage at targeted correctional units.
They're also asking for more money for local probation departments, some of which will require staffing cuts if they don't get it:
CSCDs have limited funding sources and, without additional funding, will not be able to meet the $11.3 million required to maintain the employer's portion of state health insurance without reducing current staffing levels and programs that divert offenders from incarceration. Caseload sizes may increase by approximately 6% due to an estimated 90 community supervision officers (CSOs) statewide not being funded in order to cover these rising health insurance costs. Consistent with the FY 2016-17 LAR instructions, the agency requested consideration for the amount necessary to maintain the CSCD health insurance payments at the FY 2015 budgeted level. As such, the base request includes a portion of the necessary funding increase for the FY 2016-17 biennium.
We are requesting $28.2 million in additional funding for CSCDs basic supervision and diversion programs for the supervision of an increasing higher risk and need offender population in the community. This funding would allow for management of caseload ratio size, enhanced and expanded substance abuse treatment initiatives, assist in retaining experienced specialized officers who work with medium and high risk offenders (such as substance abuse, mental health, and intensive supervision), provide for the continuation of specialized programs and services, and allow for the implementation of specialized programs in areas where they are currently limited. In addition, this funding would address the rising costs of fuel, utilities, aging equipment, and other operational needs. These programs and services provide judges with more alternatives to incarceration, both as a sentencing option and as an alternative to revocation.
In addition, Texas' cost for private prisons is rising, making the eleven facilities with which TDCJ contracts prime targets for budget savings if the Legislature enacts policies to further reduce incarceration levels. Again from Livingston's opening letter:
In order to limit the growth of state expenditures, long-term contracts have historically been established with private vendors for the operations of seven private prisons (4,118 beds), and four privately operated state jails (5,129 beds). These competitively awarded contracts are evaluated and awarded with escalating rates, resulting in increases of approximately 2.5% annually. Based on the current funding level, we will require an additional $7.7 million for the 2016-17 biennium to maintain the current population within these correctional facilities.
A few other notable exceptional items:
We are requesting 50 additional reentry transitional coordinators to enhance agency reentry initiatives. Of these, 40 reentry transitional coordinators will provide individual community-based case management focused on identifying and removing barriers to successful reentry into society post-release. The additional transitional coordinators would provide reentry services to offenders in halfway houses and under parole supervision. Offenders will be provided with resources and classes to help them move toward sustainable employment, self-supported housing, and overall self-sufficiency. The remaining 10 requested positions will be utilized as special needs reentry transitional coordinators dedicated to address the mental health needs of incarcerated offenders by providing a full range of reentry services to this special needs population.

This item includes funding to expand jail diversion services in metro areas, providing offenders with special needs services designed to divert them from incarceration in prisons and state jails. The program expansion would serve an additional 1,250 offenders with serious mental illnesses. Also, we are requesting additional funding to expand caseloads that serve offenders with a high criminogenic risk and clinical care need through our contracts with Texas Correctional Office on Offenders with Medical or Mental Impairments (TCOOMMI) and local mental health authorities. The additional caseloads would serve an additional 1,400 offenders. The expansion of these programs in jail diversion services and caseloads will enhance our capability to provide intensive mental health case management, psychiatric assessments and diagnostics, and psychosocial rehabilitation.

Halfway house placements are made for offenders scheduled to be released on parole supervision who have no viable residential plan at the time of release. Currently, the agency contracts for 1,880 halfway house beds located throughout the state. A significant number of offenders who are approved for parole do not have a residential plan and require a halfway house placement. Since these beds turn over approximately four times a year, an additional 250 halfway house beds will allow for 1,000 additional placements annually.
These are just highlights that jumped out at me at first glance. See the full document (pdf) for MUCH more detail.

Solitary confinement down 34% in Texas prisons since 2006; elderly, Hep C driving inmate health costs

The number of Texas prisoners in solitary confinement (known in bureaucratic lingo as "administrative segregation," or "ad seg") has declined by 34 percent since 2006, from 9,600 to about 6,300 today, TDCJ chief Brad Livingston told a Texas Senate Criminal Justice Committee meeting on October 28 (see video). New programs created in the last few months aim to begin transitioning prisoners out of ad seg before they're released, he said, so fewer will be released directly from ad seg to the streets, he said.

Roughly 4,500 offenders have completed TDCJ gang renunciation program and been transitioned to the general population, said Livingston. Chairman John Whitmire cautioned Livingston to continue in that direction or else federal litigation could force them to take even stronger steps.

The hearing focused particularly on cost drivers in the prison health care system.

Sen. Charles Schwertner, who is a medical doctor, took umbrage at UTMB receiving fee for service reimbursement while private providers must (mostly) accept Medicare reimbursement rates. TDCJ contracts with 140 hospitals besides UTMB, the committee was told. About 25 hospitals have received a waiver from LBB based on a TDCJ request to go above Medicare rates. Schwertner said he'd been chewing on this issue for four years since hearing a sharp exchange with a private provider about disparate rates in a Senate Finance Committee hearing.

Dr. Owen Murray told Sen. Schwertner the reimbursement was different because UTMB is a teaching hospital and is a "mixed mission facility, both a prison and a hospital." So, for example, they can't make discharge decisions based purely on medical judgments but also consider when TDCJ can pick someone up, whether beds with the appropriate classification are available, etc.. That explanation seemed to modestly placate the senator, but I won't be surprised if the committee revisits the question.

Sen. Whitmire suggested TDCJ needs an additional hospital to UTMB Galveston, maybe in Marlin.

Dr. Lanette Linthicum, the medical director in charge of correctional managed care, told the committee about 30% of incoming offenders have Hep C, the main cause being IV drug use. Only 188 are currently receiving active treatment with Sovaldi, a new drug that costs in the neighborhood of $80K per patient. A virologist at UTMB decides who gets therapy. They're presently waiting for new policy to be developed, perhaps before the end of the year, for Hep C treatment protocols. Linthicum added tha end-stage liver disease from Hep C is an emerging problem among geriatric inmates.

Dr. Linthicum said that, out of TDCJ's network of 600 infirmary beds, three quarters are assigned to permanent residents who will parole from there or die there. Ninety percent of those, she estimated, are sex offenders and thus not eligible for medical parole. And even if they were released, there's little support for them when they get out. Linthicum believes there are quite a few geriatric inmates with serious medical needs who could be released without compromising public safety. But to make medical parole work, TDCJ needs "community partners" for elderly offenders, particularly sex offenders.

On mental health, about one in six inmates has a serious mental health diagnosis, which contributes significantly to the agency's pharmacy bill. According to Brad Livingston, 74 of Texas' 109 facilities have some level of mental health presence. Four units holding 2,000 inmates provide inpatient mental health care for the sickest; 23,000 more are treated on an outpatient basis in general population or ad seg in other units.

Whitmire said that, sometime at beginning of session (assuming he's still chair), the committee will have a hearing on successes of Texas' treatment and diversion programs with an aim toward doubling down on those investments to further reduce incarceration levels.

MORE: Here's TDCJ's full budget request (large pdf) for FY 2016-17, for those interested.

RELATED: From Governing magazine: Aging prisoners shackle state budgets.

Thursday, November 06, 2014

Odds and ends: Forensics, budgets and cell-phone location data

A few odds and ends, just to clear my browser tabs:

New Harris County forensic facility under construction
Harris County is breaking ground on a new forensics facility. Too bad they couldn't figure out how to do something jointly with the city.

Dispatch from the Body Farm
How maggots help solve crime, from National Geographic.

'Texas criminal justice spending driven largely by elderly inmates'
This will be even more true every year for the foreseeable future.

Book 'em
How the feds took down Texas' biggest illegal sports book run out of Dallas.

Tackling high prison phone costs
The feds have floated a plan to aggressively limit prison phone calls. They should include video visitation when they make the rules.

Smart phone location data leakage
News Flash: Your smart phone leaks location data everywhere, to everyone, so says Ars Technica.

Habeas writs highlight withheld evidence in capital case, drug prosecution shortfalls

Harris County isn't the only place where folks are coerced into plea deals for drug offenses when the crime lab report later reveals they did not, in fact, possess any drugs. Yesterday's Texas Court of Criminal Appeals hand down list includes another such a case out of Wharton County. MORE: A reader reminds me the Statesman covered this topic back in April, detailing numerous, similar cases around the state.

Also on yesterday's hand down list: The CCA granted a habeas writ from capital murder defendant Alfred Brown out of Harris County, finding that "the State withheld evidence that was both favorable and material to applicant's case in violation of Brady" in his 2005 capital murder trial. The Harris DA's office under the late Mike Anderson agreed the prosecutor withheld evidence. Lisa Falkenberg, who has been covering the case at the Houston Chronicle, reports that the prosecutor in question was Dan Rizzo, who says the concealed evidence supporting Brown's alibi was an honest mistake. I'm sure then, in the state bar's eyes, that will mean "no harm [except to Alfred Brown], no foul."

Is DA's office right place for digital forensics?

Grits can't decide whether or not I approve of the Dallas DA creating a digital forensics division. Certainly, big-city law enforcement needs such capabilities. But I generally believe forensic analysis should be divorced from law enforcement, which to my mind includes the DA's office just as much as the police department.

Perhaps one could argue that digital forensics are different - that the requirements for objectivity when searching someone's phone or computer for evidence differ from the hard sciences. OTOH, the day accusations arise of evidence tampering, the fact that the forensic analyst is situated in the prosecutor's office may become a problem. Also, a DA's office isn't set up to manage an evidence room - which would be required to maintain a legitimate chain of custody for seized electronic items - the way police departments and crime labs routinely do. There are a lot of ways this could get screwed up.

I can't think of any other forensics activities based out of the DA's office, maybe that's for a reason! I'm not certain at first blush this is the right location for such a division and wonder about how the decision was made. In any event, I'd like to hear that debate. Offer your own opinions in the comments on the pros and cons of putting digital forensics under prosecutors' direct control.

MORE: Sky Chadde at the Dallas Observer's Unfair Park blog followed up with a post riffing on these themes.

Wednesday, November 05, 2014

Will shifting national debate on pot translate into Texas legislation in 2015?

For the most part, the Texas Legislature typically doesn't care much what happens in other states. But legalizing recreational marijuana use in Colorado and Washington definitely changed the terms of debate. And this election cycle, despite a GOP sweep in competitive House and Senate races, two more states and the District of Columbia joined the list of jurisdictions approving recreational use. From Ilya Somin at the Volokh Conspiracy:
The 2014 election was a successful for marijuana legalization. Referendum initiatives legalizing recreational marijuana passed in Alaska, Oregon, and the District of Columbia. Florida’s legalization amendment (which was limited to medical marijuana) failed, but only because victory required a 60% supermajority (it got 57% percent). A medical marijuana initiative did pass in the Pacific island territory of Guam.

Coming on the heels of the legalization of marijuana in Colorado and Washington in 2012, this is a further sign of pro-legalization momentum, and perhaps of dissatisfaction with the War on Drugs more generally – even among some conservatives.
Nationally, some pot-legalization strategists discouraged ballot initiatives on the topic in 2014, fearing the sort of red-voter swamping of the electorate that did indeed occur yesterday. 2016 is supposed to be the real tipping point with several states including California in play, according to the national groups' playbook; this year was too risky. But such fears didn't come to fruition in Oregon, Alaska, or D.C., where recreational use will soon be legal.

Sometimes experts can outsmart themselves. In my experience, ideological conservatives aren't a barrier to drug policy reform, or shouldn't be. Indeed, pitched correctly, small government conservatives are natural allies for those who want to treat drug abuse as a medical problem instead of a criminal one and reduce the footprint of the justice system.

Texas doesn't have initiative and referendum; any reform legislation here must pass both chambers at the Legislature and be signed by Greg Abbott. So change here can't happen on the Colorado, Washington, or Oregon model; it can't happen at the ballot box. Instead, incrementalism is the order of the day.

Grits continues to believe that, while the Texas Legislature will not outright legalize pot in 2015,  important constituencies now support (or at least don't strongly oppose) reducing penalties for low-level pot possession from a Class B to a Class C misdemeanor - the equivalent of a traffic ticket. Some of the biggest beneficiaries of such a policy would be county governments which don't want to raise taxes to pay for jail space and attorneys for indigent pot smokers and covet a new Class C revenue stream. (Some of those same constituencies, it should be added, also support reducing all charges for driving with an invalid license from a B to a C - the Driver Responsibility surcharge has made the numbers overwhelming.)

There has been talk of making low-level pot possession a civil violation instead of a criminal penalty. But it's unclear to me how that would work under Texas' legal framework, which couches all sorts of regulations as criminal offenses that would be civil violations in other states (for example, that's how we get 11 felonies involving oysters). Maybe they can figure out an angle but it's hard to see how they shoehorn it in with existing enforcement mechanisms. The only civil-penalty equivalent I can think of are red-light camera tickets and they have all sorts of enforcement problems.

Either way, there's a coalition to be had on reducing marijuana penalties between local tax hawks, small-government conservatives and anti-drug war liberals that could potentially pass a bill which  reduced arrests, jail time, indigent defense costs, and provided real, county-level property tax relief. And the large number of new faces in both chambers provides opportunities for new conversations and perhaps even new coalitions over the next session or two.

I'd be surprised if a bill to "legalize" pot even gets a hearing in 2015. Legislation to ratchet down penalties for low-level possession, on the other hand, conceivably could pass if the leadership would  let members vote on it.