Though Kentucky Sen. Rand Paul's comments calling federal prisoners convicted of low-level drug possession "victims" and likening the drug war to Jim Crow grabbed most of the headlines, the Texas Public Policy Foundation's Marc Levin yesterday testified before the US Senate Judiciary Committee on the subject of mandatory minimums. See approving coverage from The National Review. At Simple Justice, Scott Greenfield has a critique of prosecutor testimony presented at the hearing.
RELATED: See coverage of the Right on Crime campaign's effort to export the "Texas model" of sentencing reform to Oregon and pushback by Democrats there. An Oregon DA offered this criticism, which in Grits' view is a fair one: “It is deceptive to suggest that because other states started out with outrageously high incarceration rates and reduced those rates slightly, Oregon should follow suit...Other states should follow our lead and reduce their incarceration rates to the rates we have always had.” While I generally agree with Right on Crime, I also agree with that sentiment. According to the Bureau of Justice Statistics (pdf), in 2012 Oregon imprisoned its citizens at a rate of 378 per 100,000 population compared to 601 in the Lone Star State. Texas still has a long way to go.
Thursday, September 19, 2013
Wednesday, September 18, 2013
Writ denied: But why?
The American Bar Association's Individual Rights and Responsibilities section has issued a book-length 500 page report (pdf) on the death penalty in Texas. Find an 18-page overview here (pdf). Looking through the summary, the topics raised appear mostly related to innocence issues with implications far beyond the death penalty, like eyewitness ID procedures, recording interrogations, and ensuring high-quality indigent defense. There's a ton of detail and Grits may soon come back to examine other aspects of the report, but for now I wanted to highlight an interesting observation about habeas corpus proceedings that I'd never considered before:
MORE: See a Dallas News editorial based on the report and coverage from the Austin Statesman.
Most capital habeas petitions are dismissed in a two - or three - page summary order issued by the Court of Criminal Appeals, whereas appellate courts in other death penalty states issue detailed opinions in capital post-conviction cases. Perhaps as a result of this practice, the Court of Criminal Appeals has failed to address claims that later led to relief in federal proceedings. This also creates a problem for death row petitioners and habeas lawyers attempting to research their cases, as there is little case law developed on capital habeas proceedings despite the frequency of death sentences imposed and executions carried out.Like most of the other issues discussed, that observation applies equally to non-capital habeas writs, which are typically dismissed with at most a bare-bones explanation and usually not even that. I'd never thought about how that failure to justify denials undermines the Great Writ, but it's an excellent point.
MORE: See a Dallas News editorial based on the report and coverage from the Austin Statesman.
McLennan Co. raising taxes, raiding budgets to cover ballooning jail, indigent defense costs
Even after a recent tax increase, the McLennan County Commissioners Court has been forced to divert funds from other county departments to pay for higher-than-usual indigent defense costs and operation of a nearly empty jail facility built on spec for which the county can't find contract inmates. The Waco Tribune Herald reported today:
The Trib's editorial board puts great stock in "County Judge Scott Felton’s promise to assemble a Criminal Justice Coordinating Committee to better coordinate trials, plea deals, inmate transfers and other criminal justice matters that, left unattended, can drive up the bills for taxpayers unnecessarily." But Felton and the commissioners court can't control DA Abel Reyna's mercurial prosecution decisions. The county's egregious doomsday deal contract for the jail is already a fait accompli. And the penny ante cost savings measures being implemented hardly amount to a drop in the bucket. It's not a lack of "coordination" causing McLennan's budget crisis but a perfect storm of bad public policy across county government.
RELATED: When tuff on crime becomes tuff on taxpayers: McLennan County jail, DA edition.
The court transferred $150,000 to the indigent defense budget and about $450,000 to pay for overflow inmate costs, which lowered the contingency account from a little more than $1 million to $408,553.
In last week’s meeting, the court transferred about $800,000 from unused salary accounts to subsidize the escalating expenses.Last month, the Trib reported that hoped-for immigration detainees from US Immigrations and Customs Enforcement were not forthcoming. At the time, County Auditor Stan Chambers warned commissioners that increased jail and indigent defense expenses are driving up taxes and bleeding away the county's contingency funds: “You need to be very careful about your decisions going forward because we’re going to need that [contingency budget] to fund these two line items,” he told commissioners.
The cost of incarcerating overflow inmates at the Jack Harwell Detention Center and providing indigent defense could reach as high as $9 million in 2013, which has caused unforeseen strain on the county’s 2013 contingency account. About $7.6 million was budgeted for those two items in the current fiscal year.
The McLennan County Jail on State Highway 6 can house more than 900 inmates, but when it reaches capacity, the county houses its inmates at the Harwell center.
The Trib's editorial board puts great stock in "County Judge Scott Felton’s promise to assemble a Criminal Justice Coordinating Committee to better coordinate trials, plea deals, inmate transfers and other criminal justice matters that, left unattended, can drive up the bills for taxpayers unnecessarily." But Felton and the commissioners court can't control DA Abel Reyna's mercurial prosecution decisions. The county's egregious doomsday deal contract for the jail is already a fait accompli. And the penny ante cost savings measures being implemented hardly amount to a drop in the bucket. It's not a lack of "coordination" causing McLennan's budget crisis but a perfect storm of bad public policy across county government.
RELATED: When tuff on crime becomes tuff on taxpayers: McLennan County jail, DA edition.
Tuesday, September 17, 2013
Victim advocate Andy Kahan walks back claim of illegal access to Jon Buice disciplinary records
City of Houston victim advocate Andy Kahan allegedly either illegally accessed confidential inmate files or lied to the media to try to prevent convicted murderer Jon Buice from being paroled, Houston TV station KTRK's Ted Oberg reported (Sept. 17). Here's how Oberg summarized the events that led to the revelation:
The Travis County DA reportedly has closed its investigation without filing any charges. But the fact that their inquiry caused Kahan to allegedly admit lying to a documentary filmmaker at a minimum amounts to "bad optics," as the public relations folks say. OTOH, unlike illegally accessing inmate disciplinary documents, lying to the press is not a crime. (Hell, for some it's a hobby.) So perhaps the admission was worth it to keep the Travis County DA off his back. Now the question becomes: Will the episode cost him his job? Smart money likely says "no" - Kahan has powerful allies within Houston city government - but still, this is a pretty ugly turn of events.
MORE (9/18): Oberg updated the story last night to add that the Houston PD has launched an internal affairs investigation into Kahan over this episode. AND MORE: See additional background and commentary from the Houston Press.
UPDATE (Sept. 19): Who'd have thought? Apparently Kahan was accused of the same thing back in the 1990s. Can't find a record online of how that episode turned out.
In an interview for an upcoming documentary called "Where's Heaven," Kahan said he somehow learned details of Jon Buice's confidential prison discipline record two years ago. In the on-camera interview, he read to the producer, Alison Armstrong, a list of prison infractions. Kahan admitted he didn't know what they were for. Buice's attorney says they were for having an inappropriate relationship with a prison employee, hanging a clothesline in his cell after proper hours and having sunglasses in his cell without a commissary receipt.
Texas law says that information is supposed to be kept private. It's not supposed to be used to fight against parole, but Kahan somehow got it and used it to argue Jon Buice shouldn't be released from prison.
Kahan wouldn't talk to us about it, and his bosses at HPD refused to answer questions as well. Kahan did tell that documentary maker how he got it.
"A state representative managed to get us documents showing that Jon Buice had some disciplinary infractions," Kahan told producer Armstrong on camera.
He didn't tell the crew which lawmaker gave him the information. He claimed he didn't know it was confidential. The law is clear it is confidential and it was when Kahan gave the interview. Three months later, Kahan repeated the same story to the same documentary crew in another on-camera interview: "As a state representative, you have a lot more power than myself or anyone else for that. And so they had to comply with her request and that's how we discovered that he did indeed have a disciplinary record."
When asked if HPD should be breaking the rules to keep a confessed killer in prison, Buice's attorney Bill Habern, said no, adding that is certainly partially what he thinks happened in this case. Habern reported it to the Travis County DA, and that's when Andy Kahan's story apparently started to shift.
In early August, the Texas Tribune reported Kahan initially said he had, "no earthly clue" about the information and said victim's mother, Nancy Rodriguez, got it. Nancy Rodriguez told Eyewitness News that as well.Journalism professor Michael Berryhill first broke the story of Kahan's alleged illegal access to Buice's disciplinary file here on Grits back on July. Then the Texas Tribune followed up in early August while Grits was on vacation. (There's much more detail on the specifics, btw, in Berryhill's original Grits piece than the other two stories.)
Kahan told Eyewitness News on the phone in August he got "notes" from a state representative, but denied getting any documents. Then as the Travis County DA was asking questions, documentary producer Alison Armstrong says Kahan called her saying he lied in those two interviews with her.
Armstrong told us Kahan told her, "I threw you a red herring." She says Kahan told her he was trying to counteract what he called the lies of the other side.
HPD and Andy Kahan refused all our efforts for comment.
The Travis County DA reportedly has closed its investigation without filing any charges. But the fact that their inquiry caused Kahan to allegedly admit lying to a documentary filmmaker at a minimum amounts to "bad optics," as the public relations folks say. OTOH, unlike illegally accessing inmate disciplinary documents, lying to the press is not a crime. (Hell, for some it's a hobby.) So perhaps the admission was worth it to keep the Travis County DA off his back. Now the question becomes: Will the episode cost him his job? Smart money likely says "no" - Kahan has powerful allies within Houston city government - but still, this is a pretty ugly turn of events.
MORE (9/18): Oberg updated the story last night to add that the Houston PD has launched an internal affairs investigation into Kahan over this episode. AND MORE: See additional background and commentary from the Houston Press.
UPDATE (Sept. 19): Who'd have thought? Apparently Kahan was accused of the same thing back in the 1990s. Can't find a record online of how that episode turned out.
High-court watching: When the right-hand shoulder becomes the middle-of-the-road
The Texas Tribune offered up the first coverage I've seen outside of this blog regarding the looming departures of Judges Tom Price, Cathy Cochran and Paul Womack - one-third of the Texas Court of Criminal Appeals - which will leave three open seats to be filled in next year's elections. But despite my respect for reporter Brandi Grissom, the coverage struck me as odd.
For starters, the story announced the departures but, unlike Grits' earlier coverage, failed to identify any of the candidates running to fill their seats. The fact that these incumbents aren't running again has been known in legal and political circles for months. The real news is who might replace them.
Also, though no defense counsel were quoted in the story, Brandi did quote Tarrant County appellate prosecutor Chuck Mallin "who has practiced before the court since the 1970s." He said he viewed the court's "decisions over the last decade as 'middle of the road.' And that's where he'd like the court to remain." Come again? The only thing more preposterous than calling the Court of Criminal Appeals under Presiding Judge Sharon Keller "middle of the road" is for a media outlet to quote a prosecutor mouthing such an absurdity without providing a rebuttal.
As of this writing, there's not a single "middle of the road" vote on the entire court. Instead, the spectrum runs from conservative judges who rarely side with the defense to a more knee-jerk faction led by Judge Keller who reflexively rule for the government in virtually every circumstance.
The three departing judges fall into the former group, at least occasionally providing common-sense ballast to offset the Big-Government Conservatism of Keller and Co.. In any other high court in America they'd be considered part of the extreme right, but on the Texas Court of Criminal Appeals they're ostensible "moderates." By contrast, Keller's cohort often come off less like judges than prosecutors in robes.
What Mallin called the "middle of the road" in reality turns out to be the right-hand shoulder. And if one or two of these departing judges are replaced by Keller clones, there's a real risk the court will just veer off into a ditch.
For starters, the story announced the departures but, unlike Grits' earlier coverage, failed to identify any of the candidates running to fill their seats. The fact that these incumbents aren't running again has been known in legal and political circles for months. The real news is who might replace them.
Also, though no defense counsel were quoted in the story, Brandi did quote Tarrant County appellate prosecutor Chuck Mallin "who has practiced before the court since the 1970s." He said he viewed the court's "decisions over the last decade as 'middle of the road.' And that's where he'd like the court to remain." Come again? The only thing more preposterous than calling the Court of Criminal Appeals under Presiding Judge Sharon Keller "middle of the road" is for a media outlet to quote a prosecutor mouthing such an absurdity without providing a rebuttal.
As of this writing, there's not a single "middle of the road" vote on the entire court. Instead, the spectrum runs from conservative judges who rarely side with the defense to a more knee-jerk faction led by Judge Keller who reflexively rule for the government in virtually every circumstance.
The three departing judges fall into the former group, at least occasionally providing common-sense ballast to offset the Big-Government Conservatism of Keller and Co.. In any other high court in America they'd be considered part of the extreme right, but on the Texas Court of Criminal Appeals they're ostensible "moderates." By contrast, Keller's cohort often come off less like judges than prosecutors in robes.
What Mallin called the "middle of the road" in reality turns out to be the right-hand shoulder. And if one or two of these departing judges are replaced by Keller clones, there's a real risk the court will just veer off into a ditch.
Pretrial detention leads to disparate justice, case outcomes
Lise Olsen at the Houston Chronicle had a story yesterday titled, "Study: Inmates who can't afford bond face tougher sentences" which details the findings in this new study published Aug. 30. Her article opened:
The study also exposed the falsity of claims by surety bondsmen that their clients are more likely to behave pretrial than if they received a personal bond. “'Surety' bond defendants have higher bond forfeiture and revocation rates than personal bond defendants. However, little differences in absconder rates were found between financial and non-financial bail cases," the analysis found.
Criminal defendants too poor to bail out of jail prior to trial typically end up with a harsher punishment in Harris County than those with resources to pay for their freedom, according to a new study of more than 6,500 cases.According to the report, defendants able to make bail experience:
The study showed that the poor and others locked up weeks or months pretrial often pay in advance for alleged crimes - even when proven innocent - and usually end up with tougher punishments, too, according to an analysis by Gerald R. Wheeler, a Ph.D. researcher who served as director of the Harris County pretrial department from 1977-83. Wheeler and attorney Gerald Fry examined felony and misdemeanor cases processed in Harris County from January 2012 to June 2013.
Many defendants unable to post bond spent weeks or months in jail awaiting punishment even for relatively minor offenses, such as possession of small amounts of drugs or misdemeanor charges like trespassing.
For example, first-time felony offenders who were unable to post bond spent an average of 68 days in jail before having their cases resolved, the study showed. Those who remained jailed for drug possession - a common charge among Harris County jail inmates - were much less likely to win dismissals or deferred prosecutions than those able to afford to bail out, the study showed.
- 86% fewer pretrial jail days
- 333% better chance of getting deferred adjudication
- 30% better chance of having all charges dismissed
- 24% less chance of being found guilty, and
- 54% fewer jail days sentence
The study also exposed the falsity of claims by surety bondsmen that their clients are more likely to behave pretrial than if they received a personal bond. “'Surety' bond defendants have higher bond forfeiture and revocation rates than personal bond defendants. However, little differences in absconder rates were found between financial and non-financial bail cases," the analysis found.
Monday, September 16, 2013
'Tweetalong' latest Texas police PR strategy
Cops tweeting from their shifts. Grits supposes, in retrospect, it was inevitable; indeed, it could eventually become both a constant and ubiquitous public relations tool. For now, though, it's just an occasional gimmick. Last week, several Texas police departments participated in a "Tweetalong" - a portmanteau of "Tweet" and "ride-along" - where officers tweeted what they were doing from their shifts. Or at least, to paraphrase the Grey Lady, all the news that's fit to tweet. There was apparently a previous Tweetalong over the summer. See the string at #tweetalong.
Dash and body cams are about accountability. Tweetalongs are about PR.
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| Texas Tweetalong promotional logo |
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| Arlington cops' Twitter selfie |
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| Carrollton PD Tweetalong Twitter pic |
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| Game wardens get into the act. |
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