Monday, April 30, 2007
Gee, must be nice to be exempt from a subpoena! I hadn't noticed the bill because it came through the Civil Practices committee - apparently I wasn't the only one, because no one opposed it in committee even though it's a pretty darn radical idea. It's sponsor is Beverly Woolley, the chair of Calendars, which guaranteed it would get a floor hearing.
Right now many law enforcement records are closed that were public just a few years ago, and the trend has been toward increased secrecy for law enforcement. But every time records were closed, lawmakers told us that if someone sued they could get the records. Now even that wouldn't necessarily be true!
Texas needs to restore open records rights, not continue to close them. The records Woolley would close were public with an open records request from the time the Open Records Act was written in 1973 until 1996 - see this Grits analysis arguing for legislation that would restore the law. Now she would make it unavailable even for litigation purposes.
If government agencies don't have to give up records under supboena, why should ANY non-party to civil suits have to? I've had records subpoeneaed when I was an oppostion researcher for political candidates in litigation that didn't involve me (or my client) in the least! It was a big hassle, especially the part about being deposed for two days about what they found in my files. If I had to give up records as a non-party, why shouldn't they?
Indeed, what Woolley is really doing is ENCOURAGING more people to sue law enforcement agencies, or at least include them in the original list of defendants, because it is the only way people could access these records - again, records that 12 years ago were public with an open records request! Now you'd have to sue the agency proper to see them. That's ridiculous, this isn't Communist Russia - everyone at those law enforcement agencies works for the taxpayers.
This is a horrible bill - it wasn't on my radar screen but I hope somebody on the floor has picked up on it because it's scheduled to be voted on today.
UPDATE: Disappointingly, this bill was approved on second reading with just one amendment excluding traffic accident reports from the disclosure exception. Obviously that's just one of many types of information the public might have need for in civil discovery. Let's hope either the House comes to its senses on third reading or HB 1572 dies in the Senate.
The same committee already recommended the companion bill, HB 320 by Buddy West, for the "local and uncontested" calendar, so on its face this bill looks like a slam dunk. As I wrote when I first saw the legislation:
This perhaps bothers me more than it might otherwise after recently learning about an Austin man, a confidential informant for the feds who ran 3 Austin convenience stores and was found to have made hundreds of small, fraudulent transactions at or after the point of sale while he was working as their snitch. Checking my ID to let you see if the picture and the signature match is one thing. Scanning it into a computer means you've gathered that information electronically, can store it, and can use it for whatever you want.At a minimum, I wish the House would add restrictions on use of this information similar to those described here in Sen. Harris' SB 307. That legislation allows use of the driver license swipe for limited purposes, with the caveat:
I'm not sure I'm okay with that - banks doing it are one thing, but a convenience store requiring it starts to make me nervous.
Information accessed under this section may not be sold or otherwise disseminated to a third party for any purpose,including any marketing, advertising, or promotional activities.There's nothing like that restriction in the Carona/West legislation the Law Enforcement Committee will hear today, so if passed vendors can use that data for whatever they want. Add that information to the account number on the check and the risk of identity fraud increases. I don't think legislators have fully considered potential unintended consequences from removing longtime restrictions on using these data.
In all, 249 workers quit, retired or were fired from agency in the six weeks following the scandal. Another 135 were hired, making the net loss 114.Conservator Jay Kimbrough tried to downplay staff departures, unconvincingly in my view. The Monitor reported, "Losing some of the 4,700 employees may not be an urgent problem at a time when the agency seems headed toward holding fewer youth, Kimbrough said."
More than three-fourths of those who left were juvenile correctional officers, the frontline workers who are paid the least and are the hardest to recruit and retain. ...
In the six weeks following news of the scandal, 55 of the 249 people who left were either fired or resigned in lieu of termination, records show. Others were listed as having left because of personal reasons, for a job with better pay, medical problems, or other reasons.
But that makes little sense - the biggest reason for reducing the number of inmates was to lower JCO to youth ratios from 24-1 to the recommended 12-1. If TYC loses staff as fast as they reduce the inmate population, it won't help that problem much. In addition, it's still up in the air, apparently, whether employees with past felonies or recent misdemeanors - nearly 500 in all - will be allowed to continue working at the agency.
This exodus risks crippling the agency if it continues at this pace - with staff turnover so high, you can't lose all your institutional memory at a whack and continue to function. Understaffing contributes to increased violence and abuse, and causes the cycle to worsen instead of improve. I was disappointed to see my former boss at the ACLU besmirching TYC staff who left, declaring they probably had "something to hide" - that's a cheap shot:
“I’m quite certain that as soon as it became a big media story, people with something to hide hit the road, and that’s a good thing,” said Will Harrell, executive director of the American Civil Liberties Union of Texas ... “What we want out of this is that the bad apples get out of the barrel,” he said.That's exactly the opposite of how I'd characterize the recent TYC employee exodus. What I've noticed is that those being targeted for dismissal or bullied into resignations, with a few exceptions, have been people who had nothing to do with any identified scandal at all! Meanwhile, some of those who could have prevented the West Texas scandal are still with the agency.
A few people might have left to avoid wrongdoings discovered, but certainly not all 249 who've left since issue the flared up! That's not even true of all 55 who were fired or pressured to resign, some of whom simply had old felonies the agency knew about when they were hired. Instead, from what I've read from TYC employees in dozens of Grits comments, I'd say uncertainty, poor morale, high-handed threats to staff by new management, and media grandstanding by pols have more to do with demoralizing experienced staff and hastening departures.
In other TYC news, the Austin Statesman visited the Marlin orientation unit and along with two articles published a brief but interesting audio slideshow and also a video of their visit. See their coverage:
UPDATE: My old boss, ACLU chief Will Harrell responds to criticisms of his comments about TYC employees. Since I didn't leave the organization on great terms, I wanted to make sure I passed on his full response to readers to avoid appearing unfair or one-sided:
Thanks for the response, Will. I hope you're successful at convincing Kimbrough to change this ignominious policy, since he doesn't appear to be listening to the people who work for him.
Scott, I just want you to know two things. I am working hard to get Kimbrough to reverse his position on firing felons — and obviously now Misdemeanants. I even sent him your blog from today.Also, I don’t think all TYC employees are bad — quite the contrary-- and I am saddened for those who are leaving but who did no harm . I said as much to the reporter but that's not what appeared in print. You know how that goes.
Sunday, April 29, 2007
"A great designer has to know everything (language, history, ethnography, anthropology, psychology, biology, anatomy, etc.), while an artist doesn't have to know anything. This polarity ... is the starting point. But ironically, to really appreciate design, it is not about knowledge, but about the experience of living with the work; you don't have to know anything, and you get its 'information' almost through osmosis. Whereas to appreciate a good artwork, you have to bring and apply absolutely everything you know. Why is that?"As criminal penalty increases, eupemistically known as "enhancements," continue to pass out of the Texas House and Senate at their current rapid pace, Tuttle's words ring truer to me now than ever, mainly because of my perhaps idiosyncratic view that most "enhancements" fall on the purely "artistic" side of the equation Tuttle identifies. More important "design" considerations require subtlety, nuance and maintaing a constant eye out for avoiding unintended consequences.- Richard Tuttle,
Design ≠ Art, National Design Museum, 2004
Examples of the latter include Chairmans Whitmire and Madden's probation reform legislation - hammered out over many years in multiple interim studies and public hearings, vetted by a variety of interest groups, and supported by bipartisan supermajorities in each chamber. Bills like SB 1909, HB 530, HB 1678, and HB 3200 represent the fuititon of years of painstaking work and analysis that to my mind demonstrated some of the best qualities of the legislative process.
By contrast, criminal penalty increases or "enhancements" almost always are purely reactionary - designed to "send a message," as the polticos say, as opposed to reducing crime by a quantitatively definable amount. As I've written earlier:
Bills increasing penalties for crimes are to legislators what poetry is to the artist - a written form of self expression. It's a way legislators say, "This is what I stand for. This is what I'm against." Well, who isn't against child molestation? That's hardly the point if jacked up penalties make family members less likely to report crimes.Indeed, at this point when people on either the left and the right tell me the purpose of a bill is to "send a message," even if it's a "message" I agree with, I immediately become bored and uninterested. We need to change policies that improve real-world outcomes, not send "messages" through legislation.
It turns out, enhancments don't always come from legislators themselves but often from the Texas Legislative Council, a shadowy entity full of lawyers that drafts most bills at the Lege. The group over the years has come to use penalty increases as a baseline approach to addressing crimnal conduct. The Texas Observer blog reported recently:
Ana Yañez-Correa, executive director of the Texas Criminal Justice Coalition, tells the Observer that legislators are not necessarily enamored with enhancements, but that they are basically the default language the Council uses when drafting a bill. So if a rep asks Lege Council to draft them a bill that, say, cuts down on graffiti, without any more specifics, the first draft is usually simple enhancement language. Easy to make it look like you’ve gotten tough, without doing anything to really fix the problem.When it comes to sculpture or murals, I'll take art over design 8 or 9 times times out of 10. But when it comes to design vs. art in the legislative process, in good conscience I think Texas must eschew purely aesthetic proposals - particularly those enhancments whose purpose is not to protect victims or prevent recidivism but to regiser a position or "send a message" of disapprobatin about some already-illegal offense.
“Automatically, there’s this assumption that increasing the penalty for the crime will decrease the likelihood of a person committing a crime,” Yañez-Correa said. “We need to think about: What actually is going to deter the criminal activity?”
Both chambers in the 80th Texas Legislature have approved more enhancements already than in 2005. With everything that's happening on probation reform and drug court expansions, it seems counterproductive and wrongheaded to continue to pursue highly politicized laws that could dilute the positive impact of those long-term efforts.
Quite a few enhancement bills are tied up in the House Calendars Committe right now, while several others that already passed the House are waiting for a Senate hearing. It would be a great mitzvah to Madden and Whitmire's efforts to redesign the system if most of these bills moved no further.
Friday, April 27, 2007
Apparently not. Reports the Houston Chronicle today, HPD was warned two years ago its property room was insecure and now 21 firearms have gone missing. At least two of the guns wound up back on the street, reported the paper:
HPD is a massive agency that also makes more arrests per capita than any other Texas police force. This is a case of simply being overwhelmed by volume and simultaneously underwhelmed with staffing and managerial competence. The solution inevitably lies in some combination of a reduction of the former and an increase in the latter. Simply throwing money at the current structure probably won't be enough.
Such flaws were manifested in the mistaken 2000 destruction of evidence from 33 criminal cases; the 2004 discovery of evidence from thousands of cases that had been jumbled in some 280 mislabeled boxes; and the 2005 discovery of 150 items from criminal cases, including three capital murders, that defense attorneys may not have known about at trial.
The latest problem, revealed on Wednesday, involves the disappearance of 21 guns from the property room, leading to the suspension of two supervisors.
Two of the guns were found on suspects stopped by officers in separate incidents, but police cannot account for the remaining 19.
Remember, this is one of the agencies the Legislature may give new authority to perform wiretapping! Maybe they should learn how to manage their evidence locker, first.
Counterintuitive or not, the Texas Senate this morning accepted Dr. Robert Deuell's prescription to allow local governments to operate or approve voluntary needle exchange programs! That's the first time legislation supporting needle exchange has ever passed either chamber in the Texas Legislature. Bill supporters included Senate Health and Human Services Chair Jane Nelson who opposed the legislation in years past. In all, twelve Republicans joined 11 Democrats on a final vote of 23-8 to pass SB 308 out of the Senate.
In committee, Sen. Deuell gave one of the best performances of the session, I thought - his eloquent and passionate opening remarks set the tone for the debate and explain why he was able to convince so many of his fellow Republicans to join his cause. I was so pleased to see the Senate floor vote I went back and watched his opening again. (You can watch the April 12 committee hearing here. SB 308 was taken up 1 hour 39 minutes into the hearing.)
"Ronald Reagan said that 'facts are stubborn things,'" Deuell reminded his fellow commitee members, and the facts, he said, are that every medical study ever performed found that these programs reduce transmission of HIV and Hep C. What's more, he said, no medical study has ever shown that needle exchange programs promote drug use. In fact 20% of participants seek drug treamtent through such programs.
Deuell told the committee he supports the bill "both as a physician and a Christian." SB 308 doesn't support drug use, he said, but sends a message that "every human life has value." "My faith does not allow me to give up on anyone," he declared.
Thank you and congrats to Sen. Deuell and to all the bill's supporters. Kudos are also in order for Jon Lindsay who tirelessly carried the bill for several sessions before he retired - the bill's strong showing in the Senate in 2005 definitely laid the groundwork for today's vote. Finally, Chair Jane Nelson deserves thanks and credit for her leadership and, as Sen. Janek put it, a "courageous" vote - her and Deuell's gravitas in the Senate has a lot to do with why that bill passed, IMO.
Now the bill heads to the House, but before that, here's the list of senators who voted for SB 308 - if one of them represents you, be sure to call or write to them to say you appreciate their vote:
Averitt(R); Carona(R); Deuell(R); Duncan(R); Ellis, Rodney(D); Eltife(R); Gallegos(D); Harris(R); Hegar(R); Hinojosa(D); Janek(R); Lucio(D); Nelson(R); Nichols(R); Seliger(R); Shapleigh(D); Uresti(D); Van de Putte(D); Watson(D); Wentworth(R); West(D) Whitmire(D); Zaffirini(D)
UPDATE: See initial coverage in the SA Express News, the Dallas News, at Texas Politics blog, and at BurkaBlog
Regulars at the Texas Lege know that ghost voting is rampant, and that members improperly vote for one another all the time. But I just watched the opening of the House this morning and with the chamber virtually empty, a handful of members went from desk to desk pushing buttons until the entire board appeared lit up green, implying all the members were present for roll call. They weren't. I'm not a stickler for such things, and all they missed was the prayer and congratulatory resolutions, but it's still annoying to watch one guy logging in for a dozen different members.
TDCJ Staff: Get Livingston Out
The Back Gate lets us know TDCJ staff have begun a petition drive demanding the ouster of agency chief Brad Livingston. Here's the petition.
New private prison opens in East Texas
A private prison designed as an "Intermediate Sanctions Facility" just opened in Rusk County. Chairman Whitmire has called this a "spec prison," built without a specific client, but from all appearances it will be used as part of the proposed expansion of treatment and incarceration alternatives he and Jerry Madden put together. See prior Grits coverage. In addition, here's a report from a meeting of 75 prison ministry volunteers at a church in Henderson near the new facility.
Dallas Sheriff: 'Jail Flaws Not My Fault'
Unhappy with the coverage she's received in the Dallas Morning News, Dallas County Sheriff Lupe Valdez gave a lengthy interview with the Dallas Voice to explain her side of why problems at the Dallas County Jail haven't been fixed. “I am tired of being blamed for things that are not under my control,” she declared. The Sheriff has no control, she said, over the quality of healthcare delivered to inmates or budgets to overcome staffing shortages.
All the Gold in California
Driven by lawsuits and the prospect of mass releases, in a bipartisan vote, California just approved $7.4 billion, with a "B," in new prison spending. More from Doc Berman here, here, here, here, and here.
Choose: Jail immigrants or crooks
There aren't enough federal courts or jail space to comprehensively enforce immigration laws, concludes AP. Officials are "alarmed because where would we put our bank robbers? Our rapists? Those who violate probation?"
Brother, can you spare a job?
The SA Express News' Roddy Stinson focuses on allegations of nepotism at the Bexar County probation department.
Anderson Cooper Screwed Up the 'Snitch' Story
So says David Borden at Drug War Chronicle in an open letter to the 60 Minutes reporter. See Grits discussion of the show here and here.
New Dallas ADA Shaking Up Office
With national publicity focused on the office as a result of recent exonerations based on DNA evidence, Texas Lawyer profiles Terri Moore, the new first assistand district attorney at the Dallas County DA's office. Reports Texas Lawyer:
Moore has already put her stamp on the DA's office, embarking on an ambitious plan to institute fundamental changes to the way it does business. Since she became first assistant DA on Jan. 29, Moore has:
- Invited the Innocence Project of Texas, a consortium of research teams at various universities devoted to seeking freedom for the wrongfully convicted, to review cases in which the DA's office previously had fought defense requests for review of DNA evidence;
- Launched new policies for first-time offenders accused of marijuana possession and shoplifting to help them turn their lives around;
- Proposed reducing dramatically -- to almost zero -- the number of examining trials held before magistrates in Dallas courts, at which defense lawyers get the opportunity to review prosecutors' evidence before clients are indicted;
- Initiated plans to start an open-file policy, automatically giving defense lawyers access to the same evidence that prosecutors see, including police files, all witness statements and all discovery;
- Altered the tone of relations between prosecutors and defense lawyers, telling her staff to treat the other side with respect and decorum and not like the enemy.
SB 1909 to be Heard in House Corrections Committee on Monday!
SB 1909 by Senators Ellis (D-Houston), Carona (R-Dallas), and Deuell (R-Greenville), and carried by Representative Madden (R-Plano) in the House - relating to mandatory treatment that is more effective than incarceration - is scheduled to be heard before the House Committee on Corrections on Monday, April 30, 2007, in Room E2.016 at 8:00 am or upon final adjournment of the House.
Click here to find out more.
SB 1780 to be Heard in House Corrections Committee on Monday!
SB 1780 by Senator Whitmire (D-Houston) - relating to using forfeiture funds to support drug courts - is scheduled to be heard before the House Committee on Corrections on Monday, April 30, 2007, in Room E2.016 at 8:00 am or upon final adjournment of the House.
Click here to find out more.
SB 1655 to be Heard in House Judiciary Committee on Monday!
SB 1655 by Senators Ellis (D-Houston) and Duncan (R-Lubbock) - relating to the establishment of the Capital Writs Committee of the Texas Judicial Council and the creation of the Office of Capital Writs - is scheduled to be heard before the House Judiciary Committee on Monday, April 30, 2007, in Room E2.028 at 2:00 pm or upon final adjournment of the House.
Click here to find out more.
Good News: SB 1750 Placed on Senate Intent Calendar!
SB 1750 by Senator Whitmire (D-Houston) - relating to removing barriers through granting provisional licensure - has been placed on the Senate Intent Calendar, meaning it will be heard on the Senate floor very soon!
Click here to find out more.
"When you come out of prison, I have the deck stacked so far against me. One, I'm an ex felon, who's gonna hire me? So I had to dream up other identities to get a job. Our prisons are overloaded. The last thing they want is another body in there. I'm not gonna go to welfare. I'm not gonna have people feeding me. I'm gonna go out and earn a decent living. And that's what I did. The only thing is that I didn't do it under who I really was."
- Fred Brito, formerly incarcerated person
In the News:
AUSTIN AMERICAN-STATESMAN: Locked out of their livelihoods
COLUMBUS DISPATCH: Former prisoners struggle with news lives, study says
More Good News:
SB 838 by Senator Whitmire - relating to the revocation or modification of a person's parole - passed the Senate on the Local and Uncontested Calendar (Vote: Y: 31/N: 0) and is moving on to the House!
SB 909 by Senator Whitmire - relating to the continuation and functions of the Board of Criminal Justice - passed the Senate on the Local and Uncontested Calendar (Vote: Y: 31/N: 0) and is moving on to the House!
SB 1580 by Senator Van de Putte - relating to the provision of pay telephone service to inmates confined in facilities by the Department of Criminal Justice - passed the Senate on the Local and Uncontested Calendar (Vote: Y: 31/N: 0) and is moving on to the House!
View Senate Analysis
SB 1557 by Senator Hinojosa - relating to the appointment of an attorney to represent an indigent defendant who is in the custody of a correctional facility of TDCJ - passed the Senate on the Local and Uncontested Calendar (Vote: Y: 31/N: 0) and is moving on to the House!
Click here to find out more.
Two other problems need to be addressed. First, finding a way to deal with mental health consumers other than my putting them in jail. A mental health consumer standing in front of a convenience store experiencing an attack of Tourette's syndrome may be bad for business, but is it criminal conduct? Asking that person to produce a valid ID will generally be beyond their ability. Reaching out to touch them is likely to produce a response that could be caracterized as resistance. Suddenly the officers has a solution to the problem. Criminal trespass, failure to ID and resisting detention or transportation. The consumer gets a ride to jail because of manifestation of his illness. We don't arrest people for having a heart attack, diabetic seizures, kidney failure, etc. But we do arrest folks with mental illnesses.Thanks for the great input! See more from Deputy McKnight on the subject of county jail overcrowding.
The mental health consumer spends, on average, twice as long in jail as a non-consumer for the same offense. The system is slow, over burdened, understaffed and bureaucratic. Mental health consumers tend to be at risk persons and afflicted with one or more cronic medical problems that increase the daily cost of incarceration. The daily cost to the tax payer to house a mental health consumer can easily be double or triple that of a non-consumer.
The second problem is what does or doesn't happen when the case is disposed of and the consumer is returned to the streets. Some of the more severe penalties for alleged criminal conduct are extra-judicial. Social Security benefits, welfare benefits, and Carelink are terminated for persons incarcerated for 30 or more days. If they had an apartment it is likely that they have been evicted and their belongings lost, stolen or thrown away. Then, we throw the consumer out the back door of the jail at midnight with no home, no job, no transportation, no money, and just the clothes in which they were arrested and a one day supply of medication. With few social skills and no resourses the likelihood exists that within a short time the consumer will meet another police officer who will find justification to arrest them. It is a system that expects performance but is designed to produce failure. We create our own biggest pool of recidivists.
Re-entry or aftercare programs can and do work. Educating and organizing the the community to understand that it is the right thing to do, the economical thing to do AND that it reduces victims. There has to be a support system in place for the consumer upon release from jail. If not,the consumer will either victimize someone in order to survive or because they are at risk, they will become a victim.
Residential facilities, similar to assisted living for elderly or physically impaired, may be a partical solution. Cognative adaptive training is also needed. For most, it is not an issue of rehabilitation, it is an issue of habilitation. The skills and knowledge are not present to rehab. New skills and knowledge must be imparted to the consumer if there is to be any hope of successful integration back into society. I hate to say it, but it really does take a village.
Thursday, April 26, 2007
- Marijuana possession, (up to 4 oz)
- Criminal mischief with less than $500 damage
- Graffiti with less than $500 damage
- Theft by check with less than $500 stolen
- Theft of service with less than $500 stolen
- Contraband in a corrections facility (B misd. only)
- Driving With an Invalid License
With backing in the Speaker's home county, bipartisan support, and overcrowded jails statewide, this bill's time appears to have come - or at least I hope so. I'm sure a lot of sheriffs with jam-packed jails around the state feel the same way.
By no means does this bill say officers cannot arrest for these offenses, only that they have discretion to cite and summons instead of arrest. They can do this only for prescribed, nonviolent B misdemeanors (except for marijuana possession, where officers would have discretion to issue a summons on any misdemeanor pot charge up to 4 oz). Departments could decide by policy to continue to make arrests in any or all of these situations, but for counties that need them, HB 2391 provides new tools to manage their nonviolent jail populations.
This bill frees up much-needed county jail space for more dangerous offenders and keeps officers on the street enforcing the law instead of spending time at the jail booking someone for writing a bad check or driving with an expired license. It's a good idea that might provide a stopgap for communities struggling to put enough cops on the street and pay for rising jail costs.
The legislation would have TDCJ notify ex-felons in writing when they become eligible to vote and provide a registration card. Those interested should take a look at the fact sheet from the Texas Criminal Justice Coalition describing the bill, and their committee testimony on the topic. Said TCJC's executive director Ana Correa:
Ensuring that individuals who are returning to the community are able and willing to participate in civic life can point them in the right direction: they will be able to take on the responsibilities of fully-informed citizens and become more likely to work for the greater good. They will be able to vote on policies that will help them become and stay law-abiding, productive citizens. Finally, having a stake in civic life will encourage them to avoid returning to crime (and prison), creating an incentive for responsible living.UPDATE (4/27): This bill was unanimously approved in committee and recommended for the Senate local and uncontested calendar.
This one looks like a mural you might see in any Mexican high school:
Of the student poetry, I particularly liked this item from a page of haiku, also from one of the Gainesville kids:
Confusion is a
Walk on the dark side of town
While you’re all alone.
I felt the rage for the world
Like a hurricane.
Ain't it the truth? Confusion is indeed a walk on the dark side of town.
Now ten conference committee members - five each from the House and Senate - will decide whether Texas invests in new prisons or in treatment alternatives. Here's the list of conferees:
- House: Chisum, Gattis, Turner, Guillen, and Kolkhorst
- Senate: Ogden, Zaffirini, Whitmire, Duncan, and Williams
Some I've talked to assume Rep. Gattis, a former Williamson County prosecutor, will automatically back more prisons because his old boss is DA John Bradley, who's leading the DA lobby effort to reject drug treatment and stronger probation and build more lockups. But Gattis is a smart fellow, and his own man. It wouldn't surprise me if he backed the Madden-Whitmire proposal once he's looked at the facts.
If the House conferees stand firm, then Senators Zaffirini (D-Laredo) and Duncan (R-Lubbock) appear to be the key swing votes on prison building. Sen. Williams is an ardent backer of prison building, while Steve Ogden has said he believes they should be built as a "contingency." Whitmire was strong-armed into agreeing to new prisons and has repeatedly said he prefers the approach he crafted with House Corrections Chairman Jerry Madden, which is basically the House proposal.
If those positions hold, then the Senate's final stance on new prison building comes down to whether Duncan and Zaffirini support issuing a quarter-billion dollars in bonds and committing to more than $100 million in new annual debt and operating costs. In the end, I bet both of them can think of lots of things on which they'd rather spend the money. At least, I certainly hope so. Even corrections officers oppose new prison building.
The truth is, we don't need new prisons nearly as badly as we need better policies. As Grits calculated previously:
Lt. Governor David Dewhurst says we need more prisons because of "population growth." But from 1978 until 2004, the Texas prison population increased 573% (from 22,439 to 151,059), while the state's total population increased just 67% (from 13.5 million to 22.5 million).So between 1978 and 2004, Texas prison growth outstripped population growth by a factor of 8.5 to one! And yet, crime declined less here than it did in states with much lower incarceration rates. With Texas' population booming, it's impossible to sustain a growth rate in incarceration 8 times higher, especially since Texas can't staff the prisons we have now.
Something's got to give.
Jennifer Lafleur had an important column in yesterday's Dallas News ("Citizen Watchdog: Bills would hide employee histories," April 25) explaining all the wonky reasons why it's important to keep information about public employees open. Give it a read.
Fifteen years ago Texas had the first or second strongest public information act in the country, but dozens of nicks and cuts coupled with a couple of sawed off limbs have left our law in the middle of the pack regarding transparency, 18th according to an Investigative Reporters and Editors survey.
In the criminal justice arena, huge swaths of records that were public twenty years ago are closed today, including misconduct records at some but not all larger police departments and records about closed cases. Yet these are among the most commonly requested types of records, accounting for more than half of all open records appeals by government agencies to the Texas Attorney General.
This week a piece of truly bad legislation, SB 740 by Whitmire/Driver has finally passed the Legislature and was sent to Governor Perry's desk for his quite-likely signature. (See the House Research Organization's bill analysis.) Bottom line, it closes most records about misconduct committed by Department of Public Safety officers. As I described the bill earlier:
As usual the police unions, particularly the one representing troopers, are the main backers of secrecy bills on these topics - the only witnesses in favor of the bill at the committee hearing were three police union reps.DPS is the state's top law enforcement agency, responsible for wiretapping, border security, and the state's largest anti-drug operations. Reducing public accountability for its officers is a big mistake. The TYC debacle demonstrates ably that we can't trust government agencies to police themselves and need to leave journalists and advocates tools to see what's going on inside the black box. At least the bill Lafleur was describing closing records about employees' birthdays displayed good intentions, aiming to reduce identity theft. SB 783 isn't about identity theft at all, it's solely about keeping the public from knowing about complaints against DPS officers, even including most sustained allegations.
Currently Texas law enforcement has a two-tiered system regarding police misconduct records. More than 2,400 Texas law enforcement agencies, including 253 of 254 Sheriffs' Departments and most Texas police departments, fall under the Texas Public Information Act, which is quite generous about what records are available to the public. However, thanks to a 1989 statute won by police unions at the Legislature, those same records are closed at 73 Texas cities that have adopted the state civil service code (Chapter 143.o89(g) of the Local Government Code).
This has always been a personal beef of mine - most of these 73 cities opted into the civil service code via plebiscites in the '40s and '50s. Voters couldn't know that decades later the Legislature would reduce tranparency and open records access at those agencies. Nobody ever voted for that.
Anyway, for the 2,400+ agencies whose records are governed the Public Information Act, the complaint, investigative files and administrative outcomes resulting from every complaint are available after the investigation is closed. For the 73 civil service agencies, information about the vast majority of complaints, including about 2/3 of sustained complaints, aren't public at all, and for those handful where some information is released, it's often little more than a summarizing paragraph, typically on a single page, compared to detailed information available at most other Texas policing agencies.
[SB 783] would close officer misconduct records at DPS to the same extent they're closed at civil service cities - that's a huge reduction in transparency and accountability to the public.
The Governor should veto SB 783 - if the TYC scandal taught us anything, it's that the Public Information Act can expose grave problems that state agencies would otherwise choose to ignore. DPS is too important for the public to lose those oversight tools.
Wednesday, April 25, 2007
RELATED: a brief video posted on YouTube from the Chicago Tribune shows Shaquanda Cotton's reunion with her family after being released from the TYC facility in Brownwood, a scene that's been replicated more than 450 times in the last few weeks as kids have been released from understaffed facilities.
See related Grits coverage:
The drug court bill passed unanimously, and only seven members opposed Madden's probation bill, which had much more opposition in 2005. Congrats to Chairman Madden and supporters of stronger probation. Here's hoping these bills are similarly well received in the Senate.
The next key probation bill up on the House floor will likely be HB 3200, described here, which passed out of committee and is awaiting a a floor vote. That legislation adjusts funding incentives for probation departments to encourage offenders to earn their way off supervision through good behavior. Another important progressive sanctions bill, SB 1909 by Ellis/Madden, described here, is scheduled for a hearing in the Corrections Committee on Monday.
Via SCOTUS Blog, More capital bench-slapping of the Fifth Circuit and the Texas Court of Criminal Appeals at the US Supreme Court, though what were once routine 7-2 opinions in this vein today became 5-4 opinions with the addition of Justices Roberts and Alito to the court. No matter, for now the established jurisprudence the rest of the country must follow regarding the execution of the retarded and mentally ill still applies to the Lone Star State - so long, that is, as our current president does not enjoy one more Supreme Court appointment before the end of his term.
Capital Defense Weekly called the trio of death penalty rulings today a "sweep" for the UT Austin Capital Punishment Clinic.
The majority opinion called the Texas Court of Criminal Appeals ruling in Smith v. Texas "misguided," declaring that their interpretation “fail[ed] to disturb the basic legal principle that continues to govern such cases."
Well, folks, that's why Texas Monthly called them "Texas' worst court."
MORE from Capital Defense Weekly. Doc Berman has more links and can't resist noticing the lack of "consensus" promised by the new Chief Justice. The StandDown Texas blog rounds up national and Texas news coverage.
I mentioned that TYC conservator Jay Kimbrough announced legislators had approved his plan to fire all workers at TYC with past felonies, but now Sen. John Whitmire, who co-chairs the joint House-Senate reform committee on TYC, now says he doesn't support firing every felon.
So who, then, exactly, gave Kimbrough the OK to fire the 66 workers at TYC with old felonies? A TYC caseworker and Grits reader with a 35-year old felony conviction sent Whitmire the following letter, reprinted with permission:
Dear John Whitmire,Here's a link to the Statesman story from which he's quoting. To his credit, Whitmire responded promptly:
Please review the below quote related to Jay Kimbrough firing TYC employees with felony records who were hired under past TYC policy then terminated without cause.
“Kimbrough had temporarily suspended the terminations last week as he waited for guidance from lawmakers. Some had questioned whether the terminations should be limited to only the most severe charges or whether Kimbrough should exempt workers who had been convicted years ago.
Ultimately, the lawmakers let Kimbrough fire all of them.” Quote from the Austin American Statesman 04-19-2007
I would like to know if you are one of the law makers who let Mr. Jay Kimbrough fire all of the employees at TYC with felony records. It seems some of you had concerns about the mass firing without consideration of time since the conviction, level of offense, age at the time of conviction, and evidence of rehabilitation. Also I would like to know your position on Human Resources Code 61.035 relating to TYC employees being fired for cause only, which would make Mr. Kimbrough’s actions unlawful.
Please supply your stance on this matter by return email. I appreciate you time and consideration.
... it is my opinion that TYC should review each employee with a felony record on a case by case basis. I certainly understand that some very valuable employees could have previous felony records. Thanks for contacting my office regarding this issue.Huh? So, if Whitmire supports "case by case" reviews, which legislators told Kimbrough to fire everyone so situated?
I've argued before this is a foolish policy - the folks implicated in the West Texas scandal weren't felons, and there's no reason to believe firing long-time employees like this fellow would do anything but harm the agency. If it's true that Kimbrough's decision to fire everyone with a felony conviction wasn't approved by key legislators, as he told the Statesman, that cast the matter in a different light - another situation where a well-placed open records request would tell a lot more of the story.
For as long as I've followed these issues, Texas prosecutors have been perhaps the most powerful special interest in state politics on criminal justice matters, rivalled only by local police unions and their two statewide associations. It's ironic that it was prosecutors' opposition, not the ACLU or some liberal group, that at least temporarily held up Jessica's Law in the Senate. Others get to make suggestions, but this bunch is used to making policy under the pink dome; the most shocking thing about the passage of HB 8 to long-time Lege-watchers is that it happened against their wishes.
The same week the Duke players were exonerated, another man was cleared of rape charges as well. James Giles was convicted in 1982 or raping a woman in Dallas County, Texas. Giles served 10 years in prison and a 14 as a registered sex offender.
He lost his marriage and contact with much of his family and couldn't travel 10 miles outside his home without first obtaining permission. He was cleared by DNA evidence, with the help of the fantastic organization, the Innocence Project.
Giles isn't alone. He's the 12th man in Dallas County to be exonerated by DNA evidence. There are more than 400 others there waiting for DNA tests, and even the district attorney there believes a large percentage of them may be innocent.
"It's a new day in Dallas," said Dallas County's district attorney, Craig Watkins, after announcing Giles' release. Dallas County has a long history of tough-on-crime prosecutors and indifference to criminal justice protections that may have put hundreds of innocents in prison — or to death.
Referring to the old mentality, Watkins added, "if you sent someone to jail who was possibly innocent, it was a badge of honor."
Watkins' quest to clear the names of the innocent is aided by the fact that Dallas County coincidentally has historically preserved blood samples from cases involving violent crime. Most other jurisdictions across the country only recently began doing that.
It's likely of no coincidence that the one jurisdiction where blood samples have been preserved is also one that's finding a shocking number of convictions of innocent people.
If there's one positive that might come out of the Duke imbroglio, it's that the unusual demographics of the parties involved and alliances it spawned may mean some much-needed new scrutiny of the criminal justice system, and win welcome new advocates for reform.
Nifong is by no means the only overly aggressive prosecutor in this country. And Durham is by no means the only jurisdiction where the wrong people have been wrongly accused. As Seligmann suggested, the only real difference may have been that the Duke players had the resources to fight back. Many others don't.
A 2002 audit of the crime lab in Houston, Texas, found that experts may have given "false and scientifically unsound" testimony in thousands of criminal cases. Subsequent reports showed that crime lab employees often tailored their tests to fit police theories about how a crime was committed. The city is finishing up a $5.5 million review of 2,300 cases, including death penalty cases.
In 2003, Texas Gov. Rick Perry pardoned 35 mostly black residents of Tulia, Texas, who had been prosecuted for drug crimes based on testimony from undercover police officer Tom Coleman. Coleman, once named Texas "Police Officer of the Year," was found to have manufactured evidence from whole cloth.
Balko's right - as egregious as was the Duke lacrosse case, how much worse are the DOZEN wrongfully convicted in Dallas who collectively spent decades behind bars for the crimes of others? (Fourteen other DNA-exonerated Texas convicts have gone free statewide.) The cases Balko cites show the pendelum has swung too far in these special interests' favor, and the Lege would be wise to ignore their pleas for greater power without fixing some of the problems.
To that end, it's worth noting that the Texas Senate also just passed Rodney Ellis' three so-called innocence bills (discussed here and here), all of which are worthy of support. One increases compensation for wrongfully convicted people, and another establishes an "Innocence Commission" to vet postconviction claims of wrongful conviction. But in particular I wish the Senate had gone much further with SB 799. As finally approved it appoints a four member group drawn solely from law enforcement to create a model policy based on best practices for eyewitness identification.
As my father would say, that's better than a sharp stick in the eye, but we don't really need to research this subject further. These problems weren't invented in Texas, and social scientists have pretty much identified what's wrong with how police perform lineups and how to fix them. What's needed is legislative will to tell police they have to change their ways. That, the Senate did not do.
Here are some minimum standards that I wish the House would make mandatory in the bill instead of creating a study group:
Require that lineups and photo arrays be presented to victims or witnesses by a neutral officer who is not investigating the case and who does not know which person is the suspect. This is the equivalent of a double blind scientific test and dramatically improves accuracy.
Show photos or individuals to witnesses one at a time instead of as a group to avoid the implication that "one of them" is the offender.
Require the person showing the lineup or photo array to a witness to tell them the suspect may not be one of the people they see, and that the investigation will continue whether they identify someone or not.
There are other measures that would boost lineups' objectivity (see California's suggested best practices), but these three we know for sure are contributing to misidentifications in Texas. Why not require double-blind lineups and one-at-a-time photo arrays NOW, then study what else should be changed down the line in some future model policy?
So far the Lege has done little in 2007 besides Ellis' three bills to address the rash of recently discovered wrongful convictions. If those are all the 80th Legislature is going to pass, I hope the House Criminal Jurisprudence Committee beefs up that one aspect of Ellis' "innocence" package. It's not only good public policy, it would help save DAs like Craig Watkins the trouble and embarrassment of having to release more innocent people down the line.
The bill would require TDCJ to put out a request for bids to give prisoners phone access with restricted approved call lists, monitoring of calls (except those with an inmate's attorney), extensive data gathering, and use of biometric identifiers for access. It would require the winning vendor to install and maintain at least one phone for every 30 inmates in each unit.See the House Research Organization's bill analysis for more.
I favor this bill and I hope it passes, but there's one troubling aspect that in the future must likely be addressed. I'm all for improving prisoner phone access for a variety of reasons, and I also favor victim compensation as an integral part of the justice process. But this legislation anticipates $15 million per year in profits from the phone system from collect calls will go to Texas' crime victim compensation fund.
Here's the rub: The policy punishes the wrong people. That money comes from families, not offenders! And $15 million is a lot of scratch - it's likely that requirement significantly increases the cost of collect calls from prison, improperly in my view. Increasing phone access strengthens family ties, reduces recidivism, and improves inmate behavior - extra costs only thwart those more important policy goals. Victim compensation is great, but offenders should be the ones who compensate them, not their loved ones who did nothing wrong.
Don't get me wrong - politics is the art of compromise and that objection isn't enough to cause me to oppose the bill. But it's an example of an all too common approach that views the criminal justice system as a revenue source instead of pursuing rehabilitation goals. Somehow, someday, we must move away from that mentality.
UPDATE: This bill was postponed until Tuesday, May 1 - time to contact your state representative if you support HB 1888 to ask them to vote for it.
Tuesday, April 24, 2007
Though prosecutors and victims rights groups opposed the legislation because it would make victims less likely to report crimes, and give predators incentives murder victims, that didn't seem to matter to Lt. Gov. Dewhurst and company who strongarmed votes for the most draconian version of the legislation. This is a disappointment, and I wouldn't be surprised to see the law altered by future Legislatures when the obvious unintended consequences - of which members were well informed - begin to manifest in the real world.
Kudos to Sen. Rodney Ellis who cast the lone "no" vote on the legislation.
UDPATE: See AP's initial coverage, and also the Austin Statesman. A good post from Patti Hart at BurkaBlog has more details on the compromise. She writes:
Luckily for the state of Texas, Dewhurst has been forced to significantly change the bill in order to get enough votes to pass it out of the Texas Senate. At the urging of many outspoken senators and prosecutors, a revised proposal calls for a minimum 25-year sentence only for enhanced cases of aggravated sexual assault, when the crime includes particularly egregious circumstances like kidnapping or use of a weapon or violence.Hart wrote that support for the bill in the Senate, though broad in the end, was only an "inch deep," and that "clinging to a false issue" had cost the Lieutenant Governor significant political capital.
This change was critical to win support of prosecutors. Since approximately 80 percent of child sex abuse involves family members, an automatic 25-year prison term would dissuade families from seeking prosecution. "If a child knows that Uncle Harry is going to prison for 25 years, she's not likely to testify," a lawmaker explained to me.
Likewise, prosecutors did not want an automatic death penalty, and even questioned its constitutionality. The latest draft of the bill, sponsored by Bob Deuell, gives prosecutors the option of life without parole or the death penalty upon the second conviction for an enhanced aggravated sexual assault.
MORE from The Texas Observer blog.
SEE prior Grits posts on Jessica's Law:
- Dewhurst's backing of Jessica's Law risks fouling own political nest
- Expanding use of questionable evidence
- Sexual assault victims: Jessica's Law won't help
- Delay made Jessica's Law worse
- Floor substitute out for Jessica's Law
- Death penalty for Catholic priests?
- Jessica's Law needs amending on the House floor
- Are child molesters rational, or not?
- Sex crimes and elderly prisoners' health costs
- The Real Cost of Jessica's Law: Deconstructing the Fiscal Note for HB 8
- 'I misremember it well: Eyewitness deficiencies
- Plenty of innocent names to attach to amendment for Jessica's Law
- Destruction of DNA evidence thwarts justice
- Innocence reforms needed to make sex offender law palatable
- House Corrections Committee: Community-based treatment more effective for sex offenders
- When tough on crime is hard on the coffers
- Victim advocates oppose sex offender enhancements
- Unintended consequence: Why the death penalty for repeat child molesters would harm children's safety
The Dallas News' Michael Grabell wrote an excellent story about the problem in yesterday's paper ("Mentally incompetent inmates stranded in jail," April 23), quoting Advocacy Inc. attorney Beth Mitchell who is suing the state to improve services:
"They don't have the money to build more beds and hire more staff in order to restore these people to competency," Ms. Mitchell said.Read the rest of the article for human examples and a good overview on this important and little-discussed topic. Last year the state said the waiting list was about 100, so either they were lowballing the figure then or the waiting list has grown since the Legislative Budget Board authorized emergency funds for competency restoration in 2006.
The state has 738 beds for mentally disabled inmates, which includes 343 for those arrested for violent offenses. As of the beginning of April, 217 inmates – including 175 considered violent – were on the waiting list.
For the 175, the average wait time is four months.
The nonprofit group, which filed the lawsuit last month in Austin federal court, said the cases of Dallas inmates Michael Fields and Ronald Crawford are typical of the troubled cycle that mentally ill and mentally retarded inmates fall into:
- A months-long wait for a hearing.
- A psychiatric ruling of incompetency.
- A months-long wait for a hospital bed.
- Treatment and a return to jail.
- A months-long wait for a trial.
- Deteriorating condition and another psychiatric ruling of incompetence.
- Back to the end of the waiting list.
Grabell didn't mention it, but there's legislation in play at the Texas Legislature aimed at reducing that waiting list, spurred on by Advocacy Inc.'s lawsuit. SB 867 by Lubbock Republican Robert Duncan would make several changes to streamline the process:
- Allow judges to use a previous competency evaluation if done less than a year prior.
- Require a competency report in 30 days for a felony and 10 days for a misdemeanor (judges can grant extensions).
- Allows release on personal or surety bond pending competency restoration.
- Requires bonding out incompetent misdemeanants to outpatient treatment programs.
- Disallows incarcerating incompetent defendants pretrial longer than their max sentence would be under law.
Here's another example where, with all respect to my friend Chairman Peña, I have to question the House Criminal Jurisprudence Committee's priorities. Sen. Duncan's bill passed on the same Senate calendar as did Sen. Whitmire's SB 823 which expands police wiretapping authrority. Both cleared the Senate on April 12, but the Chair suspended the posting rules to put wiretapping on the very next (April 17) committee agenda.
Somebody tell me, please: Why should expanding wiretapping authority - a seldom used tool with important, controversial, and in this committee mostly ignored implications - merit a suspension of posting rules and a quick "yes" vote in the same meeting, when by comparison this bill, like the mentally incompetent inmates it seeks to protect, languishes? There's still plenty of time, but Peña and the Democrat-dominated committee should move with equal alacrity to hear and vote out this much more important bill so it can pass this session.
See prior, related Grits posts:
- 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
- Lawsuit could force Texas to treat mentally incompetent defendants
- Legislature should prioritize mental health funding that relieves local jails
- Chincy state hospital funding leaves mentally incompetent defendants stranded
- Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
- More counties grumbling at backlog of incompetent defendants in county jails
- MH funding not enough, but better than a sharp stick in the eye