'Right on Crime' represents at US Senate Judiciary hearing on mandatory minimums

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.

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:

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 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.

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.

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 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.

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:

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.

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.

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.)

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.

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:

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.

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.

According to the report, defendants able to make bail experience:

• 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

Another remarkable detail: "In drug possession cases, 55 percent of those who remained in jail got deferred prosecution or had cases dismissed compared to 83 percent of those who posted bond." That's an extraordinary disparity.

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.

'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.

Texas Tweetalong promotional logo

Arlington cops' Twitter selfie

Carrollton PD Tweetalong Twitter pic

Game wardens get into the act.

Dash and body cams are about accountability. Tweetalongs are about PR.

Arlington PD launching steroid testing after latest scandal

Earlier this year, Grits opined that it was, "Time for comprehensive steroid testing at Arlington PD," and now, reported the Fort Worth Star-Telegram ("Arlington police will undergo random drug testing," Sept. 15), the Arlington City Council agrees. The story opened:

Arlington Police Department employees will undergo random drug and alcohol testing starting as early as next month after a federal investigation earlier this year involving possible illegal use of steroids by some officers.

The Arlington City Council has given initial approval for $60,000 in the upcoming fiscal year, which starts Oct. 1, to expand the department’s drug testing policy to include all 640 sworn police officers. Previously, the department only required testing for new hires, for officers receiving promotions or for employees working in specific areas where they regularly come in contact with drugs, such as the narcotics unit, property room or the jail.

In June, the FBI arrested 17-year veteran police officer Thomas S. Kantzos, who they said had accessed law-enforcement-only databases to tip off a dealer from whom he had been buying steroids for himself and other officers for years that he was under police surveillance.

A second officer questioned by federal investigators, David Vo, committed suicide the day Kantzos was arrested. A third officer, Craig Hermans, resigned from the department in August after being placed on paid administrative leave in connection with the investigation.

Arlington PD has struggled with this issue for years. This was long overdue.

New reports will track indigent spending by attorney: TIDC newsletter details monitoring mechanics

The September newsletter from the Texas Indigent Defense Commission has enough interesting tidbits in it to merit a reference. Here's a notable, informative excerpt from his opening letter:

Following a busy legislative season I would like to bring to your attention several items that will impact counties and their indigent defense systems.

Based on the Commission’s FY14 budget, most counties will be eligible for a special, one-time formula grant payment disbursing funds that were accumulated in the Fair Defense Account but not appropriated in the legislature’s previous budget.  We are working to expedite the distribution of these funds and anticipate the timing of this special payment to be in December 2013. [Ed note: Merry Christmas!]

The legislature also created several new indigent defense reporting requirements for counties in HB 1318 regarding attorneys handling indigent cases, discussed in greater detail below.  We have reached out to county auditors and other stakeholders to help define a strategy for implementation of this legislation that will be most effective. 

In addition to the new reporting requirements, HB 1318 directed the Commission to conduct a weighted caseload study. We have partnered with the Public Policy Research Institute at Texas A&M to conduct the study. Little is currently known about the amount of time being spent to defend criminal cases in Texas.  Moreover, the most commonly cited national standards regarding attorney caseloads in public defense were developed in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals and appear to be based on a consensus of opinions rather than on objective evidence.  A careful study of actual practice will shed light on the time it takes to provide appropriate representation in different kinds of cases and can facilitate a more evidence-based discussion about caseloads for attorneys handling indigent cases.

Looking ahead, TIDC is excited about our upcoming Indigent Defense Workshop for Texas county officials on October 28-29.  In addition to covering recent developments in indigent defense, the workshops will share valuable information on defender programs for mentally ill defendants and opportunities for improving indigent defense through better information management. The Indigent Defense Workshop Agenda and Registration Information is available here.

Following up on HB 1318, the newsletter provided detail about new county reporting requirements breaking out spending by attorney:

The Commission has been working with stakeholders to develop forms and processes to implement HB 1318 by Representative Sylvester Turner. The bill seeks to gather information on caseloads handled by attorneys providing representation to indigent defendants via two new reports beginning in 2014. The first requires attorneys handling such cases to report to each county annually by October 15th information for the preceding 12-month period (October 1-September 30) that describes the percentage of the attorney's practice-time that was dedicated to 1) Adult criminal cases in that county’s district and county courts and 2) Juvenile delinquency cases in that county’s district and county courts. The second requires each county to submit to the Commission annually the information provided to the county by those attorneys described above, along with information that describes for the same 12-month period the number of appointments made to each attorney accepting appointments in the county beginning November 1, 2014.

Commission staff has been meeting with a variety of stakeholders, including counties, courts, and the criminal defense bar, to find ways to implement HB 1318 in a seamless manner while providing meaningful information to policymakers. On the attorney practice-time report, we have been working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to develop an online form to permit attorneys to report simultaneously for all counties in which they work. Alternatively, a jurisdiction may require or permit attorneys to report via a paper form to be promulgated by the Commission; however, the county would then need to report this to the Commission. Penalties for attorneys failing to submit a required practice-time statement by the October 15th due date may be set by the judges locally and may include an attorney’s removal from the list of attorneys eligible to receive future court appointments as is common practice with those who do not submit their required continuing legal education (CLE) hours.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. [Ed note: emphasis added.]County auditors have indicated that they already collect this information as part of the attorney payment process. Attorney practice-time reports entered through the attorney portal described above will go directly to the Commission, thereby eliminating need for the county to forward it to the Commission. Completed reports will be pre-populated into the IDER and show the attorney name, bar number, and practice-time percentage figure for each attorney (with case and payment reporting fields adjacent for completion of that part of the report). For subsequent years, attorney information will not need to be reentered because it will appear automatically in the IDER. Templates with a standard data format (XML) will be developed with PPRI to permit county auditors/treasurers to complete and then upload the report rather than manually entering the data into the website.

This data, indexed by named, individual defense attorney, will make for a provocative round of local news stories when the first reports come out. (If you're an attorney representing more than a couple hundred or so court-appointed clients at a time, prepare to see your name in the paper!) The data under HB 1318 could already be gleaned through laborious, county-by-county open-records requests, if you knew what you were looking for, but it'll be far easier to access, and in an apples-to-apples format, if TIDC gathers and publishes the info. Too bad the state won't be gathering similar data for line prosecutors; that too, could make for provocative news fodder.

Several other interesting items in the TIDC newsletter, see here.

Probation revocations down, but not by much; re-arrest rates among DWI probationers plummets

More evidence that Texas' 2007 probation reforms perhaps contributed less than has been previously estimated to recent prison population declines. The main strategy of the 2007 reforms was to reduce probation and parole revocations to prison by incentivizing diversion and progressive sanctions programs. That's worked better on the parole side than for probation (aka "community supervision"). From the Dec. 2012 "Report to the Governor and Legislative Budget Board on the Monitoring of Community Supervision Diversion Funds" (pdf):

Felony revocations to TDCJ in FY2012 represent a 2.8% decrease from FY2005 (677 fewer felony revocations) and a 1.8% decrease from FY2011 (432 fewer felony revocations). However, the percentage of revocations to TDCJ for a technical violation of community supervision conditions increased from 48.5% in FY2011 to 49.0% in FY2012.

Those are essentially insignificant reductions given the scope of the decline in state prison populations witnessed over the last half decade.* Felony technical revocations among probationers declined 10.9% from 2005 to 2012, TDCJ reported, but they're still awfully high and that small decline was far out-paced by two factors on the parole side: Dramatically reduced parole revocations and marginally increased approval rates by the parole board. Both may be viewed as an expression of legislative policy. Reduced parole revocations stem from greater use of intermediate sanctions facilities (ISFs) and other diversion programs created after 2007. And higher approval rates, particularly for low-risk offenders, resulted in large part from the board finally edging closer to targets under non-binding release guidelines that the Lege mandated they create.

County-level probation revocation trends
By contrast, reducing probation revocations has been a tougher nut to crack, in part because of decentralized local control over the process among various counties and judges. Here are the relative increases and decreases for probation revocations among Texas' largest departments since just before Texas' much-vaunted probation reforms took effect:

Change in Felony Revocations to 

TDCJ among largest counties, 2005-2012

CSCD	Percent change in revocations
Dallas	-22.8%
Harris	-17.8%
Bexar	94.0%
Tarrant	-4.3%
Hidalgo	-5.3%
El Paso	-39.6%
Travis	32.1%
Cameron	22.4%
Nueces	1.8%

**See note below on Collin Co.

.

Travis County's increase in revocations surprised me given their department's reputation for reliance on progressive sanctions, etc.. Cameron County attributes their increase to "more aggressive absconder apprehension and increased monitoring of compliance with community supervision conditions." Otherwise, Bexar County is the most prominent, chronic outlier among large counties, as has been the case since these reports began coming out.

2012 probation revocations compared

to supervised population, large counties

CSCD	% 2012 statewide probation pop	% 2012 statewide felony revocations
Dallas	13.6%	10.5%
Harris	11.5%	12.4%
Bexar	6.7%	6.8%
Tarrant	4.9%	7.1%
Hidalgo	4.0%	2.8%
El Paso	3.7%	1.5%
Travis	3.4%	3.0%
Cameron	2.3%	1.9%
Nueces	1.7%	2.2%
Collin	1.7%	1.9%

This chart perhaps provides a better sense of relative county practices than the previous one. It compares probation populations and revocations among large counties as a proportion of their statewide total. (See this data for all counties in Appendix C to the report.) Counties in which the right-side number is significantly greater than the left-hand column may be considered more aggressive at revoking probationers than their peers. That differential is especially significant in massive Harris County because of the sheer volume they process. Tarrant's numbers here are especially striking, putting their paltry 4.3% decline from the earlier chart in context. Meanwhile, Travis, Hidalgo, and even Bexar don't appear nearly as problematic on this chart as they did in the first table.

Recidivism among probationers declining, especially DWI
According to the Dec. 2012 report, 71.7% of felony probationers revoked back to prison in FY2012 were convicted of nonviolent crimes - drug offenses (32.2%), property offenses (30.4%), and DWI (9.1%), with the rest coming from violent (17.9%) and other (10.4%) felony offenses.

Remarkably, and for the most part unheralded, recidivism rates for felony probationers have been declining. "The overall two-year re-arrest rate for the FY2005 sample was 34.4% (8,914 offenders). The overall two-year re-arrest rate for the FY2010 sample was 31.8% (8,811 offenders), which was a decrease from the FY2005 sample."

The drop in re-arrest rates for DWI offenders in those two studies was especially striking: 16.9% of the 2005 cohort was re-arrested compared to 11.5% of the 2010 cohort - a 32% drop! That's a success story nobody tells much. Re-arrest rates for probationers convicted of drug offenses declined 13% over this period; 10.6% for property offenders. But DWI stands out. Perhaps new treatment resources aimed at that group are helping.

* When and by how much Texas' prison population began declining depends on whose count one chooses to use. Counting only those in prisons and state jails TDCJ has reported steady annual decreases for several years that allowed the state to close three prison units. But the USDOJ Bureau of Justice Statistics, whose count includes thousands of probationers in treatment as well as prisoners in county jails awaiting transfer to TDCJ, parole hearings, etc., did not report declines in Texas' state prisoner population until last year. See here for a more detailed discussion of the differences between DOJ's and TDCJ's numbers. 

** Collin County shows an increase in revocations of 84% in this same report. However, their probation director has persuasively argued that since-rectified data-gathering deficiencies - for many years they didn't even gather revocation data (!) - artificially deflated their initial count to make the increase look larger than it really was. Having dug into it a bit over the years, I agree that's probably true, so I didn't include them in this table.

DPS announces 'incentive program' rollout on driver surcharges

Find below the jump a press release the Texas Department of Public Safety issued yesterday announcing its belated "incentive" program, which should have come online last month. It should be said, they significantly scaled back the incentive program from the version on the books when the Lege required them to implement it. It still has the same name, but the previous version wasn't pegged to income levels, allowing anybody to pay off their surcharges at a discount if they paid up front instead of over three years. Still, this version remains better than a sharp stick in the eye, as my Dad likes to say.

Relatedly, under an open records request, this week I received a list of recommendations from DPS to the Lege (pdf) regarding the Driver Responsibility surcharge. Grits will blog on the recommendations soon, after I've had a chance to parse them in detail, but thought I'd put the link out there. In the meantime, here's the DPS press release on the incentive program, effective immediately:

FOR IMMEDIATE DISTRIBUTION                                   PRESS RELEASE

September 11, 2013                                       Media and Communications Office

                                                                                                         (512) 424-2080

DPS Announces Driver Responsibility Incentive Program

Discounts based on total household income

AUSTIN – The Texas Department of Public Safety (DPS) is now offering eligible drivers with unpaid Driver Responsibility Program (DRP) surcharges significant reductions in fees owed as part of a new Incentive Program. In addition, drivers can now apply for the already existing Indigency Program and the new Incentive Program through one application process, which ensures that customers who are denied indigency status will automatically be considered for the Incentive Program if they are eligible.  Both programs were created by the Texas Legislature.

The Incentive Program applies to individuals whose total household income is above 125 percent but below 300 percent of the federal poverty level, as defined annually by the U.S. Department of Health and Human Services. The surcharge fees are reduced by 50 percent of the total amount assessed, plus service fees. It also removes all surcharge license suspensions for six months from the date of approval but not other suspensions on the driving record.

The Indigency Program, which began in 2011, applies to individuals whose total household income is at or below 125 percent of the federal poverty level, as defined annually by the U.S. Department of Health and Human Services. Surcharges are reduced to a maximum of $250 or 10 percent of the total amount assessed (whichever is less), plus service fees.  It also removes all surcharge license suspensions for six months from the time of approval but not other suspensions on the driving record.

Information on federal poverty levels related to both programs are outlined at: https://www.txsurchargeonline.com/(S(vusti0bnq3krksgylr3qpazx))/Indigence.aspx. (See bottom of the page.)

Under these programs, the new reduced balance must be paid in full within six months to prevent a new suspension of driving privileges. Each partial payment made during the six month period requires a $2.50 service fee. If the balance is not paid in full by the due date, driving privileges will be suspended until the amount owed is paid.

The DRP program was enacted in 2003 by the Texas Legislature, which directed the DPS to assess and collect automatic three-year surcharges for the following moving violation convictions:

• Intoxicated driving offenses;
• Driving without insurance;
• Driving while license invalid or without a license;
• Reaching a point accumulation threshold for several moving violations.

Surcharges are in addition to whatever fines were originally assessed for the qualifying violations – and these programs do not apply to any other fees that a driver may owe DPS. Revenue generated by DRP is allocated to trauma centers, emergency medical centers and the state’s general revenue fund.

For additional information, including the application and instructions on how to apply for these programs, visit www.txsurchargeonline.com or call 1-866-223-3583 (select option 6). Applicants should continue making monthly installment payments while waiting for approval or they risk suspension of driving privileges.

Information related to the DRP program can also be found at: http://www.txdps.state.tx.us/DriverLicense/drp.htm.

MORE: From the Texas Tribune.

Texas jails couldn't hold all the state's probation absconders

Looking at TDCJ's 2012 Statistical Report (p. 16 of the pdf), as of Aug. 31 of last year, one notices that about 14% (57,478) of the more than 400,000 probationers statewide were categorized as "absconders." Mercifully, they were not distributed evenly among felonies and misdemeanor: TDCJ categorized 10.3% of felony probationers as absconders (24,627) and 19.5% of the misdemeanor probation population (32,851).

A fleeting thought: The entire county jail population statewide as of last month was 67,096, with the maximum, theoretical statewide capacity at 94,936 (theoretical because jails usually must keep a few empty cells at any given time due to flux, transit, and other workaday purposes, usually around 4% of the total). So statewide, extra county jail capacity could at most hold 28,000 more people, though because the jails aren't staffed for it, the practical capacity is much lower than that. All that to say, if all of Texas' absconders surrendered tomorrow, quite literally the jails couldn't hold them.

In the comments, particularly for those with first-hand knowledge, please discuss: 1) What should realistically happen with absconders, given their vast number and high probation-officer caseloads? 2) What does happen on the ground in jurisdictions where you operate? 3) Are there specific probation requirements (e.g., high fees, in-office meetings, etc.) that promote absconding? 4) What categories of low-risk offenders could be trimmed from the rolls to focus more staffing resources on absconders and high-risk offenders? And 5) If your answer to "4" was "none," what additional  funding source would you propose to boost supervision levels for absconders and high-risk offenders? Finally, 6) given that absconders haven't been arrested yet, is there a chance some of them themselves fall into the "low-risk" category and are unlikely to recidivate? (Which of course, gets us back to the first query.) Those are the questions that pop into Grits' mind, looking at this remarkable data.

TDCJ audit of Dallas probation began this week

Updating a recent post: The Dallas Morning News reported over the weekend that, on "Monday, the Texas Department of Criminal Justice will begin an examination of the probation department’s policies and sample some of its 50,000 cases. Auditors will propose fixes if they find paperwork holes that could leave criminals free rather than behind bars for violating probation." CorrectionsOne posted the full article.

Just to say it, and surely TDCJ's auditors must know this, but not every probation violation merits ending up "behind bars" and it's disingenuous to tell the press otherwise. That's also the problem with the judges' complaints as publicly quoted. There may have been one felony DWI that was egregiously mishandled, at least in part due to large caseloads and understaffing. But that doesn't mean POs should file revocation papers every time they get a dirty UA on probationers of any stripe. You could fill up the jails and the prisons pretty quickly that way with little public safety bang for the buck.

Humorously (to me, anyway), in a moment of self-reflection, a lengthy DMN editorial published yesterday framed the issue in terms of media criticism:

Tempting though it may be, don’t think you know everything there is to know about our local criminal justice system from what you see on TV or read in Dallas Morning News crime stories.

Oh, you get a lot, no question. This newspaper, especially, does an exceptional job of informing you about the whats and whys of high-profile slayings, high-dollar frauds and other crimes of urgent community interest, like serial rapes.

Yet these crimes, however newsworthy, are only the very tiptop of the crime iceberg in North Texas. Beneath the surface is the bulk of all other offenses, many of which are certainly against the law but not serious enough to keep the perpetrator in jail very long. Simply, the system would collapse under its own weight if we tried to keep every miscreant locked up, key thrown away, no matter how deserving the lawbreaker might seem.

Which leads us to the probation system. In Dallas County, it falls under the Community Supervision and Corrections Department. On a given day, its 450 probation officers are responsible for 53,000 to 55,000 people under obligation to the state but free on the streets. Simple math tells you that each officer, on average, has far more than 100 active files.

Some probationers are otherwise law-abiding folks who made a mistake; they are far less trouble to supervise. Others are varying degrees of addicts or criminal hard cases, who, by design or happenstance, make everyone’s lives more difficult, in jail or out.

Expending a greater percentage of resources on the latter group is among the many transitional changes underway at the probation department. Recent news accounts exposed significant anecdotal problems in the management of some probationers, especially those with drug or alcohol problems. Felony court judges, led by state District Judge Tracy Holmes, were alarmed and said so.

Michael Noyes, who heads the county probation department, does not disagree. In fact, he says he welcomes an ongoing state audit of his department, hoping it will point to areas of systemic improvement achieved or needed. One reason he has been remarkably nondefensive is because he started implementing changes long before bad news hit the newspaper.

Many of the problems, he notes, are not new. One employee was fired, others were reprimanded. Some issues demand heightened training, which has begun. Other problems will benefit from smarter allocation of resources.

Good to see that Noyes appears so sanguine. We'll see what the audit says. Grits hopes they suggest progressive-sanctions approaches Dallas CSCD and the judges could take as opposed to automatic arrest or revocation.

When tuff on crime becomes tuff on taxpayers: McLennan County jail, DA edition

Loved this tidbit from a September 9 article in the Waco-Tribune Herald (which is once again publicly available after being subscription only for a time):

pursuing pending charges against a man unlikely to see the outside of a prison again and transporting him back into county custody to be paid for by residents could be seen as inefficient, given the county’s budget overruns, a bloated jail population, spiraling criminal justice expenses and a shrinking reserve fund, all of which contributed to a 5-cent county tax increase for the 2013-14 fiscal year.

It could be seen that way, couldn't it? County costs are rising and the jaiil's backed up, reported the Trib's Tommy Witherspoon, mainly because DA Abel Reyna's office is taking more cases to trial:

[Local attorney] Stan Schwieger said the DA’s office’s practice of “trying to force a plea” on pending cases after a defendant is sentenced to a substantial prison term or “threatening to retry them has become almost commonplace.”

“This is not at all atypical under the current regime,” Schwieger said. “But these are the district attorney’s charging decisions. I have no input on that. All I can do is defend my clients. If they continue with these cases, then we are going to continue to defend them.”

With 2,063 pending felony cases and the county jail housing more than 1,200 inmates, the county’s chief felony court judges, Strother and 54th State District Judge Matt Johnson, have hundreds of trials ahead of them in the next year.

As of this week, there were 475 jail inmates with felony trial dates set through the end of next year in 19th Court and 151 jail inmates with trials set in 54th Court.

County records show that dozens of county jail inmates have been locked up for more than a year at a cost of $51 a day per inmate.

By contrast, the McLennan DA's Office took 46 cases to trial in 2010 and 70 in 2012, the Trib reported las month. Jumping from that to hundreds would indeed boost your costs!

Reyna's office just took on the chin its second budget cut in two years, which won't help process cases any faster. The tax hikes are instead going to pay for McLennan County's jail, which commissioners foolishly expanded hoping to house contract prisoners, then couldn't find inmates to fill the beds. The weird, intractable finances underlying the jail contract coupled with Reyna's expanded use of pretrial detention creates a near perfect storm that the commissioners court could only manage through a tax increase. One imagines we will see this dynamic repeated again next year in the lead up to the 2014-15 budget, but with even more urgency by all parties concerned.

'Cameron County to crack down on money laundering'

The title of this post is the headline of a Sept. 9th story at ValleyCentral.com announcing the receipt of a multi-agency grant for a special money laundering unit. Reported Ashly Custer of Action 4 News:

The DA's office, Brownsville Police and Harlingen PD received over $2.2 million in August from the Southwest Border Anti-Money-Laundering Alliance to specifically combat money laundering across the US - Mexico border.

The money will be used to jumpstart a new taskforce in Cameron County called the Financial Asset Seizure Team or FAST.

“The old method was just cold hard cash surreptitiously being taken back to Mexico. Obviously with the law enforcement as keen as it is, they were apprehending a lot of those loads going south. So they figured out a different way to do I, that’s with money cards, other related matters -- money order, money transfers, and the like,” said Cameron County District Attorney Saenz.

While grant money will be used to activate the taskforce, money seized as a result of illegal smuggling investigations is what will fund it.

That means FAST will operate without additional costs to the taxpayer.

The team will consist of 19 members who will work alongside federal partners like the U.S. Department of Homeland Security and the DEA.

Mixed feelings: On one hand, the "eat what you kill" funding structure where supposedly the task force will operate "without costs to taxpayers" because of seizures amounts to wishful thinking, at best. None of Texas regional drug task forces - including those along the border - could survive under that model. And that approach forces them to focus more on intercepting short-term money transports, which fails to get at the money laundered through local businesses or purchase of legitimate Mexican commodities like fruits and vegetables, etc..

OTOH, as Grits has previously noted, Texas law enforcement barely focuses on money  laundering beyond this constant search for south-bound mules carrying cash that will get them some quick forfeiture income. If Cameron County's new task force focuses on actual money laundering by banks and businesses in the Valley, and does it in a serious, concerted way, that could get interesting pretty quickly. From the press account it sounds like they'll be pleased as punch to chase mules, thank you, but you never know.

On the differences between DOJ and TDCJ prison population totals for Texas, and the Next Big Task

It turned out a number of national-level advocates were interested in a question raised as a footnote in a post titled, "If Texas' justice reforms were so great, why does the state still have the nation's largest prison system?" When you ask TDCJ how many people are incarcerated in prisons and state jails, they'point you to the 2012 Statistical Report (pdf) which informs us that there were 152,303 prisoners in Texas prisons, state jails and SAFP treatment facilities as of Aug. 31, 2012. According to the Bureau of Justice Statistics, though, Texas had 166,372 state prisoners in 2012, or 14,069 more than TDCJ's oft-quoted numbers.

Looking at TDCJ's figures regarding who is in Texas prisons and state jails, the prison population dropped by several thousand in recent years, enough to close three prison units over the last two sessions and leave enough extra beds to consider closing a fourth. But throughout this period, the BJS reporting on Texas incarceration levels remained stubbornly high, only falling finally in this most recent 2012 report.

"Which is right?" several people have asked me, including from a couple of different national groups. Having now looked into it more than I really cared to and crunching a few numbers, IMO, "Both," is the correct answer. The question boils down to the definitions underlying the two numbers. When Marc Levin, Jerry Madden or Grits cite numbers in the 150,000s for Texas' prison population, what we're quoting are TDCJ reports on the number of people actually, presently incarcerated in one of Texas' 109 prisons and state jails. Secure probation and parole facilities are reported in the same document but broken out separately. County jail data are reported to the Texas Commission on Jail Standards which publishes monthly reports.*

The federal number, though, is attempting to get to an apples-to-apples number they can apply across states. They count prisoners based on their legal status at the time of custody, not whether they've formally entered the prison system or not. Instead, the BJS report says in a footnote that, "Jurisdiction refers to the legal authority of state or federal correctional officials over a prisoner, regardless of where the prisoner is held" (emphasis added.).

Looking at Texas' data in that light, there are two main categories of prisoners in secure lockups who are formally state prisoners but not counted in TDCJ's incarceration totals: State prisoners in county jails and parolees in treatment facilities or Intermediate Sanction Facilities but who have not had their supervision formally revoked.

So, let's look at those numbers. The reporting dates won't be apples-to-apples, but close. As of Aug. 31, 2013, here are the statewide totals, by my count, of state prisoners in county jails:

• Convicted felons in jail awaiting transfer: 4,769
• Convicted state jail felons awaiting transfer: 1,186
• Parole violators (technical): 2,170
• Parole violators (new crime): 2,810
• Convicted SJF, sentenced to county jail time: 823
• Total: 11,762, or 17.5% of Texas' 67, 096 county jail prisoners

Now, let's look at TDCJ's most recent statistical report, which provided numbers as of Aug. 31, 2012 (the new one is due out soon). Here are the categories Grits identified as fitting the BJS definition:

• Intermediate Sanctions Facilities: 1,831
• Parolees in SAFP treatment programs: 318
• Total: 2,149

Adding those to the county jail numbers, one gets 13,111. The difference between the DOJ's number and TDCJ's for 2012 was 14,069. So that explains most of the difference and the rest may be accounted for by the disjointed dates and/or some other small category of state prisoners BJS counted that I didn't spot with a cursory glance.

Bottom line: Marc Levin is right that there are fewer people locked up in Texas prisons and state jails. And I suspect even he would acknowledge that the greater credit for those reductions goes to the parole board than the 2007 probation reforms. Rissie Owens and Co. have inched up parole rates by a few points and it made a huge difference. Meanwhile, some of the national advocates (even if motivated perhaps in part by jealousy - same reason everybody loves to hate the Dallas Cowboys!), have just cause to scoff at claims of de-incarceraton based on federal data. For that matter, even using TDCJ's lower number, we still have more people incarcerated in Texas than California did even before its recent court-ordered reduction.

Texas has done most of what it can on the supervision side to reduce revocations. (Probation revocation rates remain stubbornly high but have improved greatly for parole.) The next step for Texas has to be actual sentencing reform, adjusting penalty categories for nonviolent drug and property offenders to make room for violent prisoners being held on extremely long sentences.

That's the biggest reason why the Texas Legislature balked at doing more for the last three sessions following the 2007 probation reforms. The obvious, next steps they need to do are really hard and small-government conservatives, especially after Jerry Madden's departure from the House, have been unable to muster the political capital necessary to get the job done. IMO the votes are there on the House side in particular to support pretty significant reforms if the leadership would ever let the bills get to the floor. The House Calendars Committee has become a graveyard for reform legislation, with Speaker Joe Straus, like his predecessor Tom Craddick, largely shielding the membership from voting on most of the promising bills that get out of committee.

For example, by my count there have been sufficient votes on the floor of the Texas House to pass a bill reducing low-level marijuana possession from a Class B to a Class C ticket-only offense ever since the House Criminal Jurisprudence Committee first unanimously voted such a bill out of committee in 2005. This year that committee passed a bill lowering penalties for defendants under 21, which also stalled in Calendars. Under both Speakers Cradddick and Straus, the Calendars Committee has consistently refused to let such legislation onto the floor. In retrospect it was a miracle (spurred by pragmatism: they couldn't afford to build new prisons) that the 2007 probation reforms ever got a vote.

FWIW, my sense is that Texas' prison population will go a little lower, still, on its current trajectory, so long as the parole board's approval rates don't decline again. I suspect we can even close one or two more prisons. But even with the pleasing contribution of a continued falling crime rate, Texas' too-high sentencing categories for the most common nonviolent offenses must change before state government's incarceration footprint can be reduced very much further. That's the next, big task.

* Note to the Texas Commission on Jail Standards: Please put your old monthly reports online in an archive!!

New Mexican highway system will expose flaws in border-security, supply-side drug interdiction strategies

So much of the "border security" talk we hear from Texas politicians falls on a range from trivial to stupid: E.g., calls to further enlarge the already bloated Border Patrol or insistence on building a wall along the border (which would make us perhaps the first ever nation to wall off our own residents' access to a major natural resource like the Rio Grande). Militarizing rural BFE Texas or walling off farmers and ranchers' access to water are such ridiculous suggestions that any sensible person truly interested in border security must oppose or else completely ignore them.

Sadly, American border security and immigration debates tend to focus on myopic, often anecdote-driven issues designed less to solve real-world problems than to amp up culture-war triggers. Those debates do not interest me. Grits has argued at least since 2006 that one of the biggest border security challenges facing the state (arguably number two behind southbound "spillover") was Mexico's decision to massively expand its interstate highway system, specifically to allow easy commercial access to the west coast, where major mountains and minimalist roads made travel times long and even treacherous. The United States has not built a new west-coast port in decades, but trade from Asia is expanding every year by leaps and bounds. Mexico made the (wise) strategic decision to build several new "super ports" on its west coast and to expand its highway infrastructure to position itself as a North American trade hub for Asian goods.

Now, a major superhighway cuts through the mountains in Sinaloa (home to one of the major Mexican cartels) and onto Mazatlan, a major western port, cutting travel times from the Texas border in half. (I'm actually kind of looking forward to driving it.) Highways through Mexico to Brownsville and Laredo have been similarly improved, specifically aimed at maximizing the ease and rapidity of moving commercial goods. A recent article from Southwest Farm Press ("Mexican superhighway challenges Texas preparedness," Sept. 4) depicts local officials struggling with the implications:

Officials in Mexico and Texas are applauding the aggressive highway project, pointing out that trucks servicing the rich agricultural district of Mexico will soon have a shorter and more direct route to Pharr/Brownsville than they do to the Arizona border, where border crossing facilities are already overcrowded.

South Texans have been gearing up for the influx of added Mexican commerce for several years, mostly along the Lower Rio Grande Valley corridor from McAllen to Brownsville. While the McAllen area has increased cold storage and traditional storage significantly over the last five years, the Lower Valley, specifically Brownsville, has been slower to respond, a measure Cameron County and Brownsville leaders say is quickly changing.

At a special meeting of the Brownsville/Cameron County Produce Committee earlier this month, County Commissioner Ernie Fernandez said the community is not ready for the major influx of freightliners expected in the weeks ahead.

"We're not ready...not even close to being ready," he told the committee. ...

USDA estimates confirm that since the North American Free Trade Alliance (NAFTA) was adopted between Mexico and the United States, elevated commerce and traffic has risen significantly. In Texas land ports of entry alone the number of commercial crossings has doubled in just the last 8 to 10 years. In Laredo, for example, land crossing by commercial trucks increased by more than one million vehicles since 1995. In Pharr, statistics indicate more than 300,000 additional trucks have crossed during the same period.

In anticipation of increased wait times at the bridge, local Valley officials say they are hoping to purchase land soon for construction of a staging area adjacent to the Veterans Memorial Bridge crossing.

The story's mainly talking about handling the volume of traffic and goods, at one point estimating the importance of the new highways to be as significant as the construction of the Panama Canal. Mexico exports time-sensitive fruit and vegetable products through Texas, spreading from here across the entire country, and there can already be hours-long waits for inspection at the bridges during peak hours, creating the need for short-term cold storage solutions and other special accommodations for fresh produce.

However, one could say the same thing - "we're not ready" - about the border-security implications of Mexico's new ports and highways. In practice, the overwhelming majority of smuggling into Texas, both people and contraband, comes through the major checkpoints at the bridges. The rise of the maquiladora industry after NAFTA resulted in scores of US companies operating manufacturing plants on the Mexican side of the river aimed at distribution to the American market. Bilateral trade unquestionably benefits both Texan and Mexican economies. But it also masks most human trafficking and contraband smuggling to and from Mexico, and it's about to increase by an order or magnitude.

Building a wall out in the hinterlands or assigning more Border Patrol agents to stalk the brush along the river won't affect the trade situation in the least. And pity the US Customs folks responsible for vetting vehicles at the bridges. It's already physically impossible to check more than a tiny fraction without inhibiting legitimate trade in ways that violate both international treaties and our national interest.

This looming shift in international trade dynamics will utterly swamp Texas checkpoints in the next few years, making a farce of supply-side interdiction strategies that consistently failed to stop drug flows even at much lower volumes.

Elysium at the airport: TSA groping now only for poor people

Techdirt has an item on an airport security development that Grits first noticed during my vacation last month, but which I forgot to blog about upon my return. The Transportation Security Administration has partnered with the airlines to allow passengers who pay an extra fee to skip most security protocols. Reported NBC-News:

Currently, the program has been limited to U.S. citizens who are members of frequent flier programs on select airlines, or the U.S. Customs and Border Protection (CBP) Trusted Traveler program, or Canadian citizens who are members of the CBP NEXUS program.

Later this year, the TSA said it will allow other U.S. citizens to apply for 5-year enrollment online after submitting fingerprints and paying an $85 fee.

A TSA Precheck emblem embedded on the barcode of passengers' boarding passes indicates if a flier is eligible for expedited screening under the program.

Why should I pay extra to avoid groping, and by what logic would paying extra make me less of a risk? Don't you think an actual terrorist would be itching to pay the $85 and avoid the extra scrutiny? None of it makes any sense except from the airlines' perspective. They were allowed to profit by giving people in their frequent flyer or club-card programs special treatment, so I understand why they'd approve of this Elysium-esque logic. But from the TSA's perspective it seems like a public-relations calamity that a) demonstrates their irrelevancy, a tacit admission that such screenings were really pointless security theater and b) amounts to a tone-deaf snub of all passengers not so favored.

Bottom line: It appears groping at airport security is now only for poor people.

RELATED: Airport security, Kurt Cobain and the Fourth Amendment

The free jail myth: County pols must stop pretending incarceration pays for itself

When will they ever learn? Despite so many jail-for-profit schemes abysmally failing across the state, resulting in fat tax increases and countless management headaches, there are still county officials out there pretending that new jail construction will pay for themselves. Reported KIII-TV in Corpus Christi (Sept. 4)

[Nueces County] Sheriff [Jim] Kaelin has been pushing for jail expansion for some time with little success. Now, he's found at least one ally among county commissioners who says there is a way to do it without costing taxpayers money.

"We have quite a bit of space out there where we can expand dormitory type rooms for maintaining prisoners that are low-risk caliber, and that would free up space here at our main jail and allow us to bring in more federal prisoners," County Commissioner Mike Pusley said.

Those federal prisoners are key in the proposed plan. Pusley said the $60 per day federal inmates could pick up most of the tab for expansion.

Any time a politician says they can build a new jail "without costing taxpayers money," you can be sure of two things: That politician is feeding you a line of bull and taxpayers will be left holding the bag in the end.

As is typically the case, the suggestion for jail expansion ignores the underlying cause of jail overcrowding - decisions by local judges to require excessive pretrial detention. As of Aug 1, according to the Commission on Jail Standards, about 62% of Nueces County inmates have been convicted of no crime but are being held in jail pending trial because they couldn't make bail. Eighteen percent of county inmates were folks being held pretrial on misdemeanor charges. It would be far more fiscally responsible to eschew new jail building and instead fund programming to reduce pretrial detention for low-risk defendants. That's not as simplistic a fix, but it's a much smarter one that keeps the focus on public safety without needlessly boosting local property taxes.