Texas House plans to rewrite Code of Criminal Procedure, appoints committees

Texas House Committee assignments came out this morning. See the criminal-justice related committee memberships listed below the jump. The big news on the criminal-justice front, though, was the creation of a Select Committee on Criminal Procedure Reform, a five-member committee (see here, p. 43) whose charge reads: "The Code of Criminal Procedure ... has not been rewritten since 1965. As a result, it has become overcrowded, disorganized and difficult to navigate, such that there is a pressing need to consider rewriting and reorganizing it. Therefore the select committee shall study and make recommendations regarding the reorganization and revision of the Code of Criminal Procedure." Presumably this rewriting will take place in the interim and result in recommendations to the 84th Texas Legislature in 2015. Here's its membership:

Select Committee on Criminal Procedure Reform
Chair: Debbie Riddle
Stefani Carter
Abel Herrero
Joseph Moody
Tan Parker

And here are the membership lists for the three main standing committees related  to criminal justice topics:

Corrections
Chair: Tan Parker (see his press release)
Vice Chair: James White
Alma Allen
Debbie Riddle
Toni Rose
J.D. Sheffield
Steve Toth

Chairman Parker is new to the job but was on the Corrections Committee last session.

Criminal Jurisprudence
Chair: Abel Herrero
Vice Chair: Stefani Carter
Joe Moody
Lon Burnam
Bryan Hughes
Jeff Leach
Matt Schaefer
Steve Toth

Vice Chair Stefani Carter is the only member who was on the committee last session, though Joe Moody was on the committee in 2009. And finally, Homeland Security and Public Safety has a new chair:

Homeland Security and Public Safety
Chair: Joe Pickett
Vice Chair: Allen Fletcher
Tony Dale
George Lavender
Phillip Cortez
Dan Flynn
Tim Kleinschmidt
Kenneth Sheets
Ron Simmons

See the complete lists by committee and by member. Here we go, folks.

Ham Sandwich Nation: Prosecution in Texas is a growth industry

Crime is at the lowest rate in two generations but Texas can't stop sending more people to prison

A report (pdf) issued this week by the Texas Legislative Budget Board predicted that Texas' prison population will increase over the next several years if policy reforms aren't enacted to reduce incarceration rates. "The correctional institutions population is expected to increase moderately, 3.2 percent over the projection period, from fiscal years 2013 to 2018. This increase is due primarily to increasing admissions to correctional institutions," said LBB. This growth is actually less than the projections from several years ago, thanks to legislative reforms to the state's probation and parole systems, but there's clearly more to be done.

Which felons go to prison, which ones get probation and who is even charged are all local decisions. According to the Office of Court Administration, felony convictions in Texas courts increased by 17.9% in the last ten years, from 92,838 convictions in FY 2002 to 109,487 convictions in FY 2012. Those upward trends jibe neither with declining reported crime (index-crime rates per 100,000 inhabitants down 25% from 2002-2011) nor the public's perception in crime victimization surveys. Instead, Texas DAs are prosecuting ever-more felons despite a reduced pool of criminals. Prosecution in Texas is a growth industry. Welcome to Ham Sandwich Nation.

The Legislature can't control elected DAs and judges, but it does have both direct and indirect means to set the parameters of local decisions. Indirectly, as was done in 2007, the state can provide mostly financial incentives to counties to supervise more offenders on probation instead of sentencing them to TDCJ. The Texas Public Policy Foundation has bandied about suggestions of sharing "savings" with counties for felons supervised on probation instead of being sent to prison. But as long as prosecutors' discretion looms so large, the quickest way to halt increased admissions is to alter punishment levels, which have historically operated on a one-way upward ratchet. The most direct approach would be to ratchet down drug possession penalties one notch and/or index property crime thresholds to inflation, measures that would actually reduce admissions by bringing punishment ranges in line with the relative seriousness of the offenses. It's not impossible, but the status quo is unsustainable.

The Legislature hopes to close two or more prison units this session to cut costs, but unless they find a way to curb front-end increases in the number of felony convictions, they'll need to shop for more bed space just a few years down the line. The LBB report gives them a schedule to meet: The time for dabbling is past.

Texas media won't say it, but Rick Perry's veto of texting while driving ban likely saved lives

A press conference at the Texas Legislature yesterday touted a bills banning texting while driving, even though Governor Rick Perry vetoed such legislation last session. The pitch-session received wide coverage:

• Texas Tribune
• Houston Chronicle
• Dallas News
• Austin Statesman
• San Angelo Standard Times
• Odessa American
• KUT-News

The tenor of all these stories may be summed up by state Sen. Judith Zaffirini, who said in a statement, "Banning texting while driving will undoubtedly save lives." There's only one problem: It's not true.

Remarkably, not one news outlet covering the story chose to mention that, "The Insurance Institute for Highway Safety says that 3 of every 4 states that have enacted a ban on texting while driving have seen crashes actually go up rather than down." In a 2010 news release announcing the results of that study, the IIHS contended that:

"Texting bans haven't reduced crashes at all. In a perverse twist, crashes increased in 3 of the 4 states we studied after bans were enacted. It's an indication that texting bans might even increase the risk of texting for drivers who continue to do so despite the laws," says Adrian Lund, president of both [the Highway Loss Data Institute] and the Insurance Institute for Highway Safety.

Lund said of lawmakers proposing such bans, "They're focusing on a single manifestation of distracted driving and banning it. This ignores the endless sources of distraction and relies on banning one source or another to solve the whole problem."

Why might texting bans increase accidents? IIHS suggested that drivers, particularly young people, may be "moving their phones down and out of sight when they texted, in recognition that what they were doing was illegal. This could exacerbate the risk of texting by taking drivers' eyes further from the road and for a longer time." Indeed, "Using a driving simulator, researchers at the University of Glasgow found a sharp decrease in crash likelihood when participants switched from head-down to head-up displays. This suggests that it might be more hazardous for a driver to text from a device that's hidden from view on the lap or vehicle seat."

Bottom line: Texting bans have simply not had the desired effect. "Survey results indicate that many drivers, especially younger ones, shrug off these bans. Among 18-24 year-olds, the group most likely to text, 45 percent reported doing so anyway in states that bar all drivers from texting. This is just shy of the 48 percent of drivers who reported texting in states without bans."

I'm not surprised that legislators continue to push the ban despite such evidence. The go-to move for legislators whenever something occurs they don't like is to pass new criminal laws or seek to increase punishments, and if the only tool you own is a hammer, everything looks like a nail. Grits does find it disappointing, though, that not one media outlet in the whole state offered up the caveat that such a law may do more harm than good.

Zaffirini said that if the governor vetoed this legislation again he'd have “blood on his hands” but it's entirely likely, if the Insurance Institute's analysis is accurate, that Rick Perry's veto of the texting ban actually saved lives. You'd never know it, though, if you receive all your news from the Texas MSM.

Jerry Madden to join TPPF 'Right on Crime' campaign

Former Texas House Corrections Committee chairman Jerry Madden will be joining the "Right on Crime" team at the Texas Public Policy Foundation to press the Legislature for criminal-justice reform. Splendid! A match made in heaven. Congrats to Madden and TPPF on this happy news. See the announcement and other news about TPPF's criminal-justice efforts in the latest Right on Crime campaign update.

New LBB criminal justice reports

The Texas Legislative Budget Board posted five new criminal-justice related reports on their website today. Here are links for those interested:

• Adult and Juvenile Correctional Population Projections ReportJanuary 28, 2013
• Criminal Justice Uniform Cost ReportsJanuary 28, 2013
• Statewide Criminal Justice Recidivism and Revocation Rates ReportJanuary 28, 2013
• Windham School District Evaluation ReportsJanuary 28, 2013 
• Texas At-Risk Youth Services Project: A Second LookJanuary 28, 2013

Roundup: Police pensions, corrupt cops, Johnny Cash in Huntsville, and Big Brother goes high-tech

Here are a few odds and ends that won't make it into full posts but merit Grits readers' attention:

Scrutiny of police pension funds
The Austin Statesman and the Dallas News both have features today on police pension funds. In Austin, the issue is alleged conflicts of interest among trustees. In Dallas, high-dollar travel by pension managers. Glad to see more scrutiny in this area.

A non-sexual escort service in Houston
A pair of Houston police officers have been arrested and charged in federal court with escorting drug shipments for a Mexican cartel, potentially facing life without parole.

Live, from Huntsville
You've heard the Man in Black's albums from Folsom Prison and San Quentin, but did you know Johnny Cash's first prison concert was in Huntsville, TX? I didn't before reading this excellent, lengthy BBC item on "Johnny Cash and his prison reform campaign."

Hiccup in sale of scam charity's seized assets
Readers may recall that the Texas Attorney General seized control of the assets of a scam charity that claimed to be raising money for families of dead Texas state troopers. However, "Lawyers for the Texas attorney general's office said Monday that a “cloud of procedural impropriety” is casting a shadow over the pending sale of the former Texas Highway Patrol Museum, and they recommended that the building be put back on the market," reported the San Antonio Express-News.

Dallas DA may face primary challenge
In Dallas, former drug court Judge John Creuzot is contemplating a run against District Attorney Craig Watkins in the 2014 Democratic primary.

Big Business takes on criminal justice
At the Texas Tribune, Brandi Grissom has more details on the Texas Association of Business' new-found dedication to criminal justice reform.

Tech companies seek Fourth Amendment protection for cloud-based email
See Google's latest transparency report revealing how often law enforcement requests user data from the company and how frequently they comply. Google recently began requiring warrants signed by judges before releasing cloud-based email content held by the company, and to their credit, Yahoo!, Facebook, and Microsoft have said they'll follow Google's lead. Federal law allows law enforcement to access cloud-sourced email communications that are more than 180 days old without a warrant, so these companies bucking Congress and it's unclear as of yet whether the courts will endorse these pro-privacy stances.

Big Brother Tech: Gun tags suspects with synthetic DNA for future arrest
In Britain, a company is marketing a "gun" for use in riot situations, though one can imagine other applications, that "shoots criminals with DNA tags, marking them for later arrest." To apprehend them later, "Portable readers equipped with ultraviolet light scanners would be able to verify the synthetic DNA." One practical glitch: "The pellets come in rifle or pistol form, containing 14 pellets per container. All pellets in a pack have the same DNA code. That means you could tag a lot of people at one event, but you couldn’t necessarily single him or her out in the crowd--so it would still be hard to tell who may have incited a riot, rather than just taken part." I guess that means they'd have to arrest everybody. Ugh!

Regulate GPS tracking of cell phones, electronic devices by law enforcement

The Dallas Morning News on Friday ran an editorial I authored on the need for legislative action to provide greater oversight and transparency regarding law enforcement's access to GPS tracking data from cell phones and other electronic devices. The column appeared behind their paywall, but I've reprinted it below the jump. 

Scott Henson: Austin, end unregulated GPS tracking by police
In an era of smartphones and near-ubiquitous GPS tracking of our cars and electronic devices, Texas statutes protecting its citizens’ privacy have failed to keep up with rapidly changing technology, allowing government access to personal location data from cellphones and other electronic devices without any judicial oversight. Those records are sealed permanently in Texas, without even aggregate data reported, as has long been required when police use old-fashioned wiretaps or trap-and-trace devices.

Mobile-phone carriers told Congress last year that law enforcement accessed their customers’ location data more than 1.3 million times in 2011. Because of outdated surveillance statutes and diminished open-records laws, Texans can’t know how often, nor for what purpose, police gather citizens’ cellphone location data. There’s no way to tell how many of those 1.3-plus million incidents occurred in Texas, nor which agencies most frequently gather location data, much less how often that sort of tracking led to arrests or indictments.

Are such data gathered by “fusion centers” or other intelligence-gathering divisions of law enforcement? Are they used to track political protesters, whether from the Occupy movement or at anti-abortion rallies? Have they ever been misused in ways that resulted in disciplinary actions against officers? Under current statutes, there’s no way to know.

Privacy advocates are asking the Legislature to consider a bill requiring a warrant for law enforcement to access cellphone-location data, with exceptions for emergencies and when the owner of an electronic device reports it stolen. It would also eventually unseal information about law enforcement’s use of those records after the investigation is complete, making such transactions subject to Texas open-records laws. It would require aggregate reporting about GPS tracking comparable to what’s required for old-fashioned (and now rarely used) wiretaps and trap-and-trace devices, giving the public a window onto how frequently law enforcement tracks them.

What little we do know about cases in which location data is gathered raises questions about whether it has been used too broadly. Federal Magistrate Judge Stephen Smith in Houston has written: “Asked to furnish … cases brought against individuals who had been subject to warrantless cellphone tracking since 2001, the Department of Justice identified … about 38 cases a year. Given that the federal government obtains tens of thousands of these orders every year, this data suggests that the government is spending more time chasing the innocent than the black sheep and ne’er-do-wells.”

How state and local jurisdictions in Texas use such data probably varies widely. For the most part, such decisions are made in a murky realm beyond judicial or public oversight that lends itself at a minimum to the appearance of overuse and, potentially, abuse.

Courts have typically been slow to extend constitutional protections to new technologies. The telephone was invented in the 1870s but the Supreme Court did not require a warrant to wiretap a telephone conversation until 1967. There’s no reason to wait that long to install protections for location data emanating from our personal electronic devices.

When the Supreme Court said in U.S. vs. Jones (2012) that placing a physical tracking device on a personal vehicle was a search, Texas law already required a court order, though not a full-blown search warrant, for police to use that tactic. But if police want to request your physical location data over, say, the last six months from your cellphone provider, they need only issue a subpoena. No judge need ever know about it unless they later decide to submit the location data as evidence (which, from the numbers Judge Smith presented from the federal system, doesn’t seem to happen all that often).

These are simple, logical updates to Texas’ criminal law that the Legislature could enact during the 83rd session, without waiting for Congress or the Supreme Court to finally get to the problem many years down the line. Why wait? Texas should act to protect public privacy now and place reasonable limits on location tracking by law enforcement.

Bad apple at DPS crime lab could spoil barrel of convictions

Potentially hundreds of people convicted of drug crimes in 36 Southeast Texas counties may have their convictions overturned after the discovery last year that a scientist who'd worked on nearly 5,000 cases had falsified results. At a meeting of the Texas Forensic Science Commission (FSC) on Friday, a number of new details emerged about the episode and its aftermath. (Since no MSM reporters were there for that portion of the meeting, this account is a Grits exclusive.)

Throughout the time Jonathon Salvador worked as a controlled substances analyst at the Texas Department of Public Safety (DPS) crime lab in Houston, he was never a particularly competent employee, said Commissioner Sarah Kerrigan who headed the FSC investigation. Salvador was terminated when it was discovered he reported the contents of a batch of pills without testing them, substituting data from another sample. (To its credit, the agency self-reported the incident to the FSC as soon as it was discovered.) Upon retesting his prior three months of casework, DPS found four other cases requiring corrective actions, including one where he'd incorrectly identified a substance as marijuana. Since no one knows how often he may have made errors or falsified evidence, all convictions based on his analyses are potentially in jeopardy.

Though a DPS official told the FSC that Salvador may have left his prior job at the Los Angeles PD crime lab "under questionable circumstances," he was considered a "valuable lab member" by his peers, Prof. Kerrigan told the commission. He was well-liked by his co-workers, was considered "responsive and compliant" by his supervisors, and was the sort of employee who regularly volunteered for unwanted tasks that helped the office function. He performed well in court and his testimony was convincing to jurors. He just wasn't a very good analyst and at some point began to take shortcuts.

Salvador was sacked last year after another employee discovered he'd issued a "fraudulent" report that "misrepresented" what tests he'd performed on a batch of Alprazolam pills. Though he'd worked for the agency since 2005, performing tests in 4,944 criminal cases, Salvador's work suffered from consistently poor documentation, technique, and decisionmaking, said Kerrigan. He struggled with his caseload and at times appeared not to fully understand the science behind the work he was assigned, though he tended to cheerfully and promptly correct mistakes whenever they were identified.

FSC staff interviewed Salvador's managers and peers, among whom there was a consensus that he did not work hard and his performance was "marginal" and of "low quality." The lab's internal oversight process  identified a high rate of errors in his work requiring corrective actions, but the lab manager was "compassionate to a fault," said Prof. Kerrigan, ignoring what in retrospect should have been obvious warning signs. In the month prior to the drylabbing incident being discovered there had been two episodes of "under-performance" cited by his supervisors: One in which he failed to find a controlled substance which was actually present, and another in which he'd allowed his instrument to become contaminated for lack of proper cleaning (which can result in false positives). The lab performs "tech reviews" of 100% of its cases, and those reviews found errors in Salvador's work more often than his peers. But tech reviews don't involve retesting and wouldn't have uncovered the sorts of falsification that resulted in his termination.

The office suffered from a "culture" that "tolerated under-performance" because of high case loads, said Dr. Nizam Peerwani. DPS managers were hesitant to record problems in an employee's file for fear such blemishes would give fodder to defense attorneys to impeach testimony in court. Salvador's annual performance reviews identified recurring problems with low output, lack of attention to detail, taking shortcuts, and too many corrections in his tech reviews. But as a general practice, employees who made it through the one-year probationary period at the lab "were dug in," said a DPS manager. Kerrigan said there was  a "perception among staff that termination was unlikely" regardless of performance.

Even so, lab workers interviewed said that Salvador felt under increased pressure to perform and was worried about management's perception of his low-quality work in the months prior to his termination. Earlier in his career, he'd more frequently asked for assistance when he struggled with scientific or technical questions beyond his understanding. But lately he'd "stopped asking for help" for fear of management's perceptions about his competence, speculated his peers.

Since Salvador's termination, DPS officials say they've implemented a new, more rigorous evaluation system that will be more likely to result in terminations for under-performing employees, and new employees will receive evaluations every two months for their first year. Changing the labs' culture is complicated, though, by the fact that DPS has too few examiners, large backlogs, and expanding caseloads. Plus, training new lab workers takes many months before they can handle cases on their own. There's no short-term solution to that dynamic and the first-cut legislative budgets for DPS did not include money for additional crime lab employees.

The question now becomes, what happens to all the defendants whose cases Salvador worked on?  In those containing errors or where the evidence has been destroyed and can't be retested, defendants could be entitled to habeas relief. Conceivably, hundreds of convicted defendants may end up having their cases overturned, either freeing them from prison or ending their probation terms. In cases that originated with the Department of Public Safety, all the evidence was kept and can be retested, Kerrigan said, but smaller agencies in those 36 counties were much more "diligent" about destroying old drug evidence and there will likely be nothing to re-test in 25-50% of cases, she estimated. What a spectacular mess!

The Texas District and County Attorneys Association helpfully advised their members last year that "For any case with a bad retest, or cases with now-destroyed evidence, [they should] request that the court appoint an attorney to take the case through a writ process if appropriate." But elected District Attorneys are under no obligation to follow that advice and, as a practical matter, various jurisdictions are approaching the situation differently.

The first habeas writs from this episode came out of Galveston, where FSC general counsel Lynn Garcia told the commission that prosecutors planned to agree to dismissal on nearly all 849 cases Salvador worked on from that county (with a handful of exceptions). But the first writs that went to the Court of Criminal Appeals were remanded for further investigation. (See one of the orders [pdf], all of which are essentially similar.) The CCA asked for "more information before addressing the claim on its merits, though they did say that "Applicant has alleged facts that, if true, might entitle him to relief." In particular, the high court ordered:

The trial court [to] supplement the writ record with the investigative report from DPS and any other documentation supporting its agreed findings of fact. The trial court shall provide support for its finding that the forensic examiner in this particular case was the examiner who was found to be unreliable by the DPS investigation. The trial court shall also determine whether there is more drug evidence that could be tested, or whether any other analyst was involved in the testing of the evidence in this case. If another analyst was involved in the testing for this case, the trial court shall make findings regarding the actions of each individual analyst. Additionally, the trial court shall determine whether any additional testing was ever done on the evidence in this case, either before or after the initial proceedings in this case. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.

I'm not a lawyer but from my reading of that passage, defendants may be entitled to relief where a) evidence was never tested by another analyst, and b) the drugs were destroyed and are not available for retesting. Since DPS typically performed only "tech reviews" of Salvador's work and did not routinely have another analyst confirm the results, the court seems to have left open the door for convictions to be overturned in cases where the evidence was destroyed. That could turn out to affect a lot of cases.

In an additional twist, the court added, "The parties are reminded that under certain circumstances, an applicant may be eligible for release on bond under Article 11.65 of the Code of Criminal Procedure." The first of those orders were issued on December 5, giving the trial judge 30 days to hold a hearing on the fact issues and 60 days to report findings back to the CCA. So we may have a better idea how these cases will shake out sooner than later.

In Harris County, the public defender office is performing "triage" and has pledged to process any viable habeas writs, though they have a relatively small number because local crime labs handle most of their drug cases. In Montgomery County, prosecutors have requested testing of all 1,281 cases Salvador worked on from that county since 2005 and will notify defendants if retesting either can't be done or uncovers more errors.

How cases from the other 33 counties will be handled varies widely. My employers at the Innocence Project of Texas (IPOT) offered to perform a "triage" role for those counties similar to that being performed by the Harris County Public Defender, the commission was told, but that process has barely moved past the discussion phase and the group only recently received a list of cases involved. (N.b., IANAL and work on policy issues for IPOT; Grits has no connection to nor inside knowledge regarding the group's legal work on these cases.)

Those intermediaries are needed because most affected defendants had court-appointed lawyers who have no obligation, incentive nor resources to pursue post-conviction claims. With so many cases involved, an ad hoc approach is untenable here but the legal mechanisms for redress simply aren't set up to handle this sort of volume.

This story has mostly flown under the MSM's radar so far, but the implications loom large and I'd expect it pick up steam in the press if and when old convictions start to be overturned and folks begin leaving prison. The Forensic Science Commission will be vetting a draft of its report on the episode at their next meeting and issue a final version in the fall.

Note: This post was corrected on January 29 to attribute a quote to Dr. Nizam Peerwai that was mistakenly ascribed to Dr. Kerrigan. Grits apologizes for the error.

Harris County plea mill alive and well: Huge caseloads reported for favored lawyers

Several must-read blog posts emerged recently from Houston-area criminal defense lawyers regarding court-appointed attorneys handling massive caseloads, sometimes three and four times the maximum number recommended by American Bar Association guidelines. Attorney Robb Fickman posted the complete list of appointments from FY 2011, arguing that:

The Harris County Criminal Appointment system is controlled by the judges. It is their creation and it is a wretched creation.  Favored lawyers who are known to move cases are given an obscene number of court appointments.  Lawyers who work hard on cases, who do their job are given a much smaller number of cases.  The result is a small group of lawyers, handling an exceedingly large number of cases.  Likewise, the result is a large group of lawyers,  who are competent, are not given enough cases.

Fickman does not take state appointments, he noted in the comments at Murray Newman's blog, so this isn't just sour grapes from someone who wished they got more cases. The following posts do a fine job of fleshing out the issues so rather than opine further, Grits suggests you immediately go read what lawyers on the front lines had to say:

• Robb Fickman: We must change Harris County's shameful appointment system now
• Paul Kennedy: The numbers don't lie
• Murray Newman: Too much for too few

The show must go on: Hyping fear for profit in an era of declining crime

One of the reasons I began this blog was frustration with the damned-if-you-do-damned-if-you-don't nature of crime coverage in the mainstream media, particularly the time-honored practice of hyping fear to sell papers. If crime goes up, the media shout from the rooftops that the public is in grave danger, "read all about it." When it goes down, they tout the lurid details of the most sensational cases (e.g., the Casey Anthony trial) with little or no context, as Judge Nancy Gertner has effectively argued, and warn that the public doesn't "feel safe" despite the statistics. Such stories inevitably ignore that the media's skewed coverage is one of the greatest contributors to false perceptions about crime.

A typical example may be found in a Jan. 25 Houston Chronicle story titled, "Crime dips, but not everyone feels safe." The first third of the story "balances," in the journalistic lexicon, one neighbhood activist's complaint that police don't do enough in his neighborhood with aggregate data showing crime is declining, as though the two sources were of equivalent probative value. When the story finally quotes an academic expert, here's the spin he puts on it:

The statistics do suggest a downward trend, said Alex del Carmen, chair of the Department of Criminology and Criminal Justice at the University of Texas at Arlington, but the picture the data provides is incomplete, with little insight into whether citizens feel safe.

"When we say crime stats are going down, it could also be that citizens are not reporting crime as much. It could also be that certain types of crimes are moving to other parts of the city or outside of the city," he said. "When we say crime is going down in the city of Houston, it doesn't necessarily mean that citizens in Houston are safer."

See how it works? If crime goes up, the media sell papers by hyping fear. But when it's down, we're told that "doesn't necessarily mean that citizens in Houston are safer." I sometimes wonder if there's any statistical result that the press wouldn't use to hype fear of crime. After all, people don't buy papers to read good news. And for TV news, of course, "if it bleeds, it leads."

Professor del Carmen's suggestion that the public may not be "reporting crime as much" doesn't jibe with long-term trends from the best available data sources. The two major measures of US crime rates are Uniform Crime Reports (UCR), which reflect crimes actually reported to police, and the National Crime Victimization Survey (NCVS), which is a quite robust survey asking people whether they've been victimized by crime, whether or not it was reported, essentially estimating crime victimization based on a large sample. In general, the NCVS survey has consistently found that about half of all crimes go unreported when compared to the UCR data, a trend which hasn't changed much in recent years.

The latest NCVS survey (pdf) found the rate of violent-crime victimization (see the chart on p. 1) has declined by about 75% since 1993, tracking the decline in reported crimes in the UCR. It's true that the most recent NCVS reported a one-year increase in unreported burglaries and thefts. However, since 2002, total property crimes in the NCVS declined by 18% (see Table 4 on p. 4), with the rates of motor vehicle thefts down 45% and other thefts declining 19% over the same period. The rate of household burglaries in the NCVS declined mid-decade nationally, with a slight recent uptick bringing them back to 2002 levels in the most recent report. Still, by any available measure, both reported and unreported crime rates are at or near historic lows in most categories.

Which brings me to a related story from the BBC asking, "How unrealistic is murder on television?" It's not just the news media, after all, who hype crime for profit. The story began:

Murder happens a lot less in real life than on television.

There were 636 killings in England and Wales in 2010-11 - that equates to 11.5 for every one million people - or a rate of 0.00115%.

By contrast::

The latest series of tongue-in-cheek detective show Midsomer Murders is drawing to a close. The murder rate in the fictional county of Midsomer has been estimated at 32 per million, in excess of the England and Wales figures.

In Murder, She Wrote, Jessica Fletcher's sleepy home town of Cabot Cove has a rate of 1,490 murders per million.

Moreover, "it's not just the sheer volume of fictional murders on television but their nature that diverges from reality." In particular:

The kind of "whodunit" type of murder shown on television is not the norm.

Shows like Dexter, Wire in the Blood, Cracker, Messiah and even CSI depict serial killers and "stranger" murders generally with a regularity far from reality.

"There is a huge fear of stranger murders, which is completely wrong and unrepresentative of real life," says [Crispian Strachan, former chief constable of Northumbria Police and now a tutor at the Cambridge Institute of Criminology].

The "stranger danger" hype is promoted by law enforcement, too, but no amount of police press conferences could influence public perception as much as the constant stream of dramatic portrayals in TV and film. Grits was particularly interested by the observation that past literary portrayals were less visceral and more nuanced than today, portraying a more diverse view of crime:

Detectives like Poirot and Miss Marple solved murders in a much more elegant fashion - often over tea and crumpets.

And there were detectives who didn't always trade in murder. Of the first 12 Sherlock Holmes short stories, only three revolve around murders.

But now death seems to dominate.

Doesn't it, though?

A couple of years ago, my father startled me with a question: Are horrific murders and serial killers more common than in the past, or do we just hear about more of them because of the internet, cable news, etc.? I was floored by his perception because both the nation and Texas had witnessed an astonishing decline in murder rates over the prior two decades, but here was an intelligent, well-read lawyer under the impression that violent crime was worse than any time in his memory. In reality, crime rates haven't been as low as they are now since my father's childhood (though no one can explain exactly why).

And dear old Dad isn't alone. A 2011 Rasmussen poll found that "More adults than ever report that crime in their community has increased over the past year, and most think the continuing bad economy will cause the crime rate to rise even higher." In reality, though, crime continued to drop after the 2008 recession hit, plummeting to modern lows. So most adults believe something that is demonstrably false - that crime is increasing and the economic downturn made it worse.

Crime used to be "news," but now it's treated by the media mainly as entertainment. And as every entertainer knows, "the show must go on."

Paper publishes propitious profile of Texas exonerees

Timothy Cole

The Houston Chronicle has produced a remarkable interactive feature on Texas exonerees titled "A Human Tragedy," with photos and interviews of 24 Texas exonerees - some famous, others relatively obscure, but all having endured extraordinary and heart-wrenching personal journeys. Go here to access interviews with each of them, and here's the feature article accompanying the multimedia project, highlighting the cases of Michael Morton, Tim Cole, Joyce Ann Brown and James Giles. Great work by reporter Tony Freemantle, photographer Billy Smith II, who explained the motivation behind the project in a brief Q&A: "I just felt that the first sound bite when they first get out of court wasn’t enough. We’re trying to figure out how they’re doing, where’s their life going. All of them are different. You have some that want to change the system so that this doesn’t happen to anyone else. But then there are some that move out into the country and, you know, live by themselves and don’t get along with other human beings. I mean they’ve been caged up like an animal and never had any privacy and now they want all the privacy they can get." Fascinating stuff. Kudos to Chronicle editors for putting the project together.

Dawson State Jail targeted for closure by, well, everyone

Topping the list of potential Texas prison closures is the Dawson State Jail, a high-rise building on the bank of the Trinity River in downtown Dallas. The Texas Tribune reported this week that more than two dozen organizations signed a letter urging legislators to shutter the facility, citing failures in oversight and provision of healthcare. (UTMB provides actual healthcare services at the unit, but an investigative report last year found that staff "did not follow proper procedures by failing to call for help" in a high-profile death case.) In addition, whereas closing the Central Unit took longer than expected to wind down operations, the contract with Corrections Corporation of America to operate Dawson runs out at the end of this fiscal year. So the budget savings would be both more certain and immediate than closing the century-old, state-run Central Unit. No doubt there are other criteria for judging potential prison closures, but Dawson seems to be a likely candidate by almost any measure.

Don't underestimate import of false arson convictions

Maurice Chammah at the Texas Tribune has coverage of the arson review at the Texas Forensic Science Commission titled "Arson reviewers expect small number of cases," describing a report from my IPOT colleague Nick Vilbas who told commissioners he expected perhaps 6-8 cases to be sent through the process that had a serious chance of the convictions being overturned. Commissioner Sarah Kerrigan suggested that, "When you have six to eight cases out of a thousand, you're really restoring public confidence in the fire investigation system.”

Your correspondent interjected, though, to point out that one shouldn't draw too many hard conclusions from those numbers. Yes, IPOT sent 1,085 questionnaires to TDCJ prisoners convicted of arson, but only 173 returned them. Anyone who's ever done direct mail knows you'd need to do more than one pass to get a higher response rate. It's possible there are other innocents in prison who for whatever reason simply didn't return the form. Out of the 173 who did, said Vilbas, 33 warranted further review, and it's out of that subset that he estimated 6-8 of the cases might turn out to be false convictions based on junk science. In addition, as Chammah's story pointed out:

At the meeting, Scott Henson, a policy consultant for the Innocence Project and author of the criminal justice blog Grits for Breakfast, cautioned the commission that the arson review only addressed convictions in which someone is currently serving prison time. They did not look at cases in which the convicted arsonist is on parole or probation, or has finished their sentence. In addition, Henson said, many false arson accusations did not enter the criminal justice system, but instead were handled by the Texas Department of Insurance as a part of questions over fire damage claims.

So while I agree with Commissioner Kerrigan that the arson review should go a long way toward "restoring public confidence," IMO it would be incorrect to imply that those 6-8 cases are the only ones out there. If there turn out to be six innocence cases out of the 173 prisoners who responded, that'd be a rate of 3.5%. IMO it's probably not correct to apply a larger denominator that includes cases never vetted. That said, IPOT and the state fire marshal have set up a process whereby if more cases are identified in the future, there's now a method for having experts vet them for potential innocence claims, as fire marshal Chris Connealy reminded me outside the meeting room..

Despite Grits' caution about minimizing preliminary numbers, Professor Kerrigan is surely correct that the arson review process will contribute to rebuilding public confidence that was justifiably shaken by the Todd Willingham fiasco. But there's a long way to go before the public can be sure these cases will be justly resolved. Indeed, it remains unclear whether the Court of Criminal Appeals will provide habeas relief based on new scientific evidence; in past opinions, several members of the court have said they shouldn't.

Texas is the first state to undertake this sort of comprehensive review of old arson cases and no doubt the participants will learn a great deal as they go through the process, which is only just beginning. In fact, Connealy said other states have expressed interest in copying Texas' process and may launch similar efforts. Wouldn't that be something?

Judge recommends habeas relief in conviction based on junk arson science

Following a habeas hearing in district court discussed earlier on Grits, Judge George Allen in McLennan County has recommended a new trial based on expert testimony that the arson investigation in the two-decade old case was profoundly flawed. See related coverage:

• Texas Observer: After serving 25 years, Ed Graf may finally receive a new trial 
• Texas Observer: Judge recommends new trial for Ed Graf; see also the Observer's 2009 coverage of the case.
• Waco Tribune-Herald: Judge's okay puts Graf one step closer to new trial in murder
• KWTX-TV: Judge recommends new trial for local man convicted of sons' fiery deaths

Graf's case will be the first time the Texas Court of Criminal Appeals will consider whether a defendant convicted based on junk arson science may be entitled to habeas relief, or at least the first since the whole controversy over the Todd Willingham case brought international attention to the subject. But precedents at the high court are all over the map regarding whether such convictions can be overturned when the science changes or improves, and several judges on the CCA think it shouldn't be allowed. The Texas Legislature this spring will consider a bill (expected to be filed next week) to close that gap in state habeas law to clarify that new, potentially exonerating scientific evidence can provide a basis for post-conviction relief. The measure is one of two recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions that the Legislature has not yet acted upon (the other is to require police to record custodial interrogations). For Graf's sake, and others similarly situated, I hope it passes this time around.

This morning Grits is headed to the Forensic Science Commission meeting where they'll hear a presentation on the status of the arson review being conducted by the state fire marshal and my employers at the Innocence Project of Texas. After the politicized brouhaha surrounding the Todd Willingham case, it's a welcome relief to see these topics addressed in a calmer, more thoughtful and systematic fashion. But unless and until the Legislature or the court clarifies that false convictions can be overturned based on new, exonerating science, it's impossible to envision how the end-game will play out, either in Graf's case or others involved in the arson review.

Google now demanding probable-cause warrants for police to access Gmail accounts

Excellent news on the electronic privacy front:

Google demands probable-cause, court-issued warrants to divulge the contents of Gmail and other cloud-stored documents to authorities in the United States — a startling revelation Wednesday that runs counter to federal law that does not always demand warrants.

The development surfaced as Google publicly announced that more than two-thirds of the user data Google forwards to government agencies across the United States is handed over without a probable-cause warrant.

A Google spokesman told Wired that the media giant demands that government agencies — from the locals to the feds — get a probable-cause warrant for content on its e-mail, Google Drive cloud storage and other platforms — despite the Electronic Communications Privacy Act allowing the government to access such customer data without a warrant if it’s stored on Google’s servers for more than 180 days.

“Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the Constitution, which prevents unreasonable search and seizure,” Chris Gaither, a Google spokesman, said.

Some of the customer data doled out without a warrant include names listed when creating Gmail accounts, the IP address from where the account was created, and where and what time a user signs in and out of an account. What’s more, Google hands over without warrants the IP address associated with a particular e-mail sent from a Gmail account or used to change the account password, in addition to the non-content portion of e-mail headers such as the “from,” “to” and “date” fields.

It was not immediately known whether other ISPs are traveling Google’s path when it comes to demanding probable-cause warrants for all stored content. But Google can seemingly grant more privacy than the four corners of the law allows because there’s been a string of conflicting court opinions on whether warrants are required for data stored on third-party servers longer than 180 days. The Supreme Court has never weighed in on the topic — and the authorities are seemingly abiding by Google’s rules to avoid a high court showdown.

Before this recent change, according to the company, "68 percent of the requests Google received from government entities in the U.S. were through subpoenas" with no judicial oversight. This new policy appears to have been installed in the wake of revelations during the Petraeus scandal regarding how frequently, and with shockingly little oversight, Google allowed the FBI comprehensive access to private Gmail accounts.

I'm glad to see Google standing up to the government bullies. If mobile phone service carriers would take the same, proactive stance to protect their customers' privacy from government intrusion, then proposed legislation requiring warrants for law enforcement to gather GPS tracking data perhaps wouldn't be necessary. But they won't. So it is.

17-year old capital defendant in legal limbo following SCOTUS rulings

Readers may recall that a US Supreme Court decision last year banned life without parole for juveniles where juries do not have the option to impose other, lesser punishments, a decision which left sentencing in Texas in limbo for 17-year olds charged with capital crimes. As Grits earlier described the situation, "Texas had already eliminated both the death penalty and life without parole for juveniles by the time Miller v. Alabama (pdf) was decided [in 2012], but in Texas offenders are charged as adults once they're 17 years old. The US Supreme Court, though, has now forbade both death penalty and mandatory life-without-parole sentences for defendants under 18 years old. So for someone charged with a capital offense at 17, there are presently no legal punishments available for capital murder under Texas law."

An example of this scenario is playing out in Weatherford, Texas, where a judge has refused to rule whether a 17-year old capital murder defendant can be tried on charges for which there exist no punishments on the books that the Supreme Court considers constitutional. From the Weatherford Democrat ("Judge declines to rule on punishment question," Jan. 24):

Texas law currently provides two penalties for capital murder - death or life imprisonment without parole.

Because of a 2005 U.S. Supreme Court ruling that the death penalty for those under 18 years old at the time of the offense is unconstitutional and a 2012 U.S. Supreme Court ruling that a sentence of life without the possibility of parole for a defendant under the age of 18 at the time of the offense is unconstitutional, Moore argued that the state could not pursue a charge under which there is no lawful sentence.

Notably, state Sen. Joan Huffman has filed SB 187, ostensibly to clarify the law. Under Huffman's bill, "a sentence of life imprisonment is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age." In that scenario, a 17-year old convicted of capital murder theoretically could be paroled after 40 years, as is now the case for younger defendants, while at 18 they would be sentenced to either death or life without parole. (Even if Huffman's bill passes, cases charged before the law changes would not be affected.)

The Supreme Court's ruling in Miller v. Alabama was unambiguous: The high court insisted "that sentencing authorities consider the characteristics of a defendant and the details of his offense," giving an option for a lesser sentence if the facts so warrant. The Miller court explicitly held that, "Life without parole 'forswears altogether the rehabilitative ideal' (citation omitted). It reflects 'an irrevocable judgment about [an offender’s] value and place in society,' at odds with a child’s capacity for change." One wonders, though, couldn't the same be said for a mandatory 40-year sentence? Grits recently mentioned a non-capital murder case where an adult defendant was sentenced to 20 years, so clearly for some killers, individual circumstances do matter at sentencing.

(As an aside, at least one legal commentator has speculated that SCOTUS' line of reasoning in Miller could result in further restrictions on mandatory minimum sentences in the future, especially where "a mandatory minimum sentence extends the term of the sentence beyond the life expectancy of the offender," or in "cases where consecutive sentences extend the term of the sentence beyond the life expectancy of the offender.")

Make me philosopher-king and I'd change Texas' capital statutes to provide both greater consistency and more sentencing options for juries. In general, recent jurisprudence from SCOTUS strongly implies that our capital statutes are more likely to be deemed constitutional when juries doing the sentencing have wider leeway to choose among punishments. That's why IMO there should be three sentencing options for adults charged with capital murder, not two: Life with the possibility of parole (as was the case prior to 2005), life without parole, and death. Limiting the option only to the latter two is what caused the conundrum Huffman's current bill seeks to fix. If they'd retained the third option back in 2005, there'd be no dilemma for the judge in the Weatherford case, nor any need for her bill.

Tyler judge reprimands prosecutors, will report them to state bar

From the Tyler Morning Telegraph: "Judge Kerry Russell reprimanded prosecutors in court this morning because they did not immediately notify Nichols' defense attorney about his weekend arrest. Russell said he would be notifying the State Bar of Texas to investigate the conduct of Jason Parrish and Richard Vance."

Texans' views on immigration misaligned with interests of 'job creators'

According to the Washington Post:

More than 6 in 10 Americans now favor allowing illegal immigrants to eventually become U.S. citizens, a major increase in support driven by a turnaround in Republicans’ opinions after the 2012 elections.

The finding, in a new Associated Press-GfK poll, comes as the Republican Party seeks to increase its meager support among Latino voters, who turned out in large numbers to help-re-elect President Barack Obama. ...

The poll results suggest the public overall, not just Hispanics, will back his efforts. Sixty-two percent of Americans now favor providing a way for illegal immigrants in the U.S. to become citizens. ...

And 59 percent of whites now favor a way for illegal immigrants to gain citizenship, up from 44 percent in August 2010, and 41 percent in September 2009.

Overall, the poll found 35 percent strongly favored allowing illegal immigrants to become citizens over time, while 27 percent favored the idea somewhat. Just 35 percent of Americans opposed the approach, with 23 percent strongly opposed and 12 percent somewhat opposed. That compared with 48 percent opposed in 2010 and 50 percent in 2009.

By contrast, a fairly robust Texas Tribune poll last fall found that, among Texans, "Most of the respondents — 62 percent — said police should be allowed to inquire about or report the immigration status of people they encounter on the street, including 46 percent who feel strongly about it. Another 31 percent think police should not be permitted to do that."

It's possible a similar poll would show opinions have shifted slightly since the election. And at some point, the public surely will begin to recognize the disconnect between portrayals of chaos on the border by the Rick Perrys, Todd Staples and Barry McCaffreys of the world and the reality that the Texas side of the border remains among the safest places in the state. For now, though, given Texas' 2012 election results and the unbridled supremacy of the GOP, emboldened by freshly gerrymandered districts, Grits suspects Texans' views won't have changed as much - though perhaps a little - in the wake of the president's re-election compared to the nation at large. At a minimum, we'll probably see fewer immigrant bashing bills at the Legislature in the near term, which is a good thing. But the underlying opinions of the Republican base almost certainly remain the same.

Some Texas business interests, on the other hand, are ready for the wave of nativism that's swept through the Grand Old Party to subside. David Crowe, chief economist for the National Association of Home Builders, recently told NPR:

"I have heard many reports from builders who say they can't hire enough people, they can't find subcontractors, they're unable to get the labor necessary to build homes that they do have on order — even at the low level of building that's occurring right now," Crowe says.

Many of those laborers went back to their home countries or got jobs elsewhere. "All of that has to be reversed," Crowe says. "That labor has to come back from where it went, or whatever job it found instead."

And Crowe says the crash didn't just force construction workers out. It killed lumber-supply companies and stopped raw land from getting prepped for development. As a result, there are fewer companies and fewer workers all up and down the supply chain.

And already, Crowe says, the modest level of demand is beginning to push up prices for everything.

"We can't get this industry working too fast too quickly, or prices would go out of sight," says Mike Holland, regional president for Marek Brothers, a Houston-based construction firm.

Several Texas sources were quoted in the NPR piece. Not only do US-born workers not necessarily have the same skill sets as the supposedly unskilled workers who "went back to their home countries" when the economy crashed, many Texans can't even pass the initial screening to get hired, whether because of a criminal history or a dirty urinalysis. Jan Maly, CEO of a specialty contractor in Houston, told NPR that criminal background checks and drug tests disqualified three out of five applicants:

many people don't make even the first-round cut of passing drug and criminal checks, let alone bring the skills necessary to do the job.

"We have to do background and drug checks on just about everybody," Maly says. "You'd be quite amazed if you knew how many people were disqualified. Sixty percent fail."

To review, the homebuilding industry can't find skilled workers because the Obama Administration's immigration crackdown and a slumping economy sent so many "illegal immigrants" back to their home countries. Texas companies would like to hire more US citizens, but few have the needed skills and 60% either fail the urine test or don't survive a criminal background check. So a combination of immigration policy, drug policy and overcriminalization lie at the root of the industry's worker shortage.

Governor Perry recently opined that, "Now more than ever our country needs strong leadership from states like Texas, that are making tough decisions to live within their means, keep taxes low and provide opportunities to job creators so their citizens can provide for their families and prosper." The "job creators" quoted by NPR, though, are lamenting that the Texas construction industry's skilled workforce "went back to their home countries" and for the industry to prosper, "That labor has to come back from where it went." Ironic, huh?

Governor's Criminal Justice Division seeks new home for specialty court data collection, oversight

The Texas Criminal Justice Coalition sent out an email today describing new legislation that will be filed soon, according to Christopher Burnett of the Governor's Criminal Justice Division:

In 2012, Governor Perry created CJAC by executive order to examine aspects of Texas specialty courts (drug courts, veterans’ courts, family drug courts, etc.)  Over the last year, CJAC volunteers have spent countless hours looking at questions of evidence-based best practices, oversight, protection of participants’ rights, the role of court team members, and the need for solid data to measure specialty court efficacy.  During this legislative session, the results of CJAC’s work will be presented through a bill authored by Senator Joan Huffman.

The bill’s main purposes will be to consolidate the majority of existing specialty court statutes in one place, clarify the requirements that these courts report their existence to the Governor’s Criminal Justice Division (CJD), further define the role of court team members, develop outcome- and evidence-based best practices to serve as guidance for courts, and require the collection of minimal but standardized performance data.

Specialty courts only work when judges and other team members have the maximum flexibility to tailor their particular court to fit local needs and resources.  A cookie-cutter, one-size-fits-all, governed-from-Austin model of how specialty courts should operate simply won’t work.  The original authors of the various specialty court statutes understood this and so do the members of CJAC.

Over the last ten years, the number of specialty courts in Texas grew from nine to around 140.  This rapid growth and the ability to gather meaningful data have been difficult to track.  Legislators, county judges, county commissioners, and all involved need to see if these courts continue to do what they were designed to do:  keep people from unnecessarily going deeper into the criminal justice system; restore broken lives; and free up scare space in county jails and state prisons for those truly requiring incarceration.  CJD believes the proposed bill will help accomplish those goals.

Burnett foresees that, "the next step in specialty court evolution as being the transfer of CJD’s limited oversight of and data collection responsibilities for these courts to another state agency. The where and when will be determined by the Texas Legislature," though offhand one imagines the Office of Court Administration seems like a logical spot. See the rest here.

Investigator: Judge allegedly texted prosecutors tips during trial

A recent Houston Chronicle article behind their new paywall had the story of a judge who allegedly favored the prosecution so adamantly that she apparently couldn't help but give out  friendly advice to help along a weak case. Reported the Chron (Jan. 18):

A Polk County district judge is accused of sending text messages from the bench to an assistant district attorney to help bolster the prosecution's case during a trial, according to an investigator's report.

State District Judge Elizabeth E. Coker declined to return phone calls to comment on the allegations laid out in a report by Polk County investigator David Wells.

Wells was Polk County District Attorney Lee Hon's criminal investigator when he made the report, but he now is a detective with the Angelina County Sheriff's Department.

After reviewing the report written five months ago, Hon issued a statement this week saying he had found no communications from Coker that had influenced a trial's outcome. He added that he expects the case to be reviewed by the State Commission on Judicial Conduct for possible ethical violations that could require disciplinary action against the elected judge.

Regrettably, this only came to light after the communications were discovered by an outsider - the prosecutors receiving these ex parte messages didn't report the judge on their own. Moreover, it appears to have gone on in other cases. The lead prosecutor, Beverly Armstrong "advised it was not the first time, as [assistant prosecutor Kaycee] Jones is in her ear all the time regarding information she believes to be given her by Judge Coker via text during trial," according to an investigator's report quoted by the paper. Pretty brazen, it seems.

Houston attorney Mark Bennett at Defending People claims such behavior is common among Harris County judges, declaring "On more than one occasion I’ve seen Harris County judges coaching prosecutors during breaks in trial." Bennett said he's less surprised at the "underlying contempt for the adversarial process" so much as the use of an "easily documented" means of communication. Experienced judges giving ex parte advice, he seemed to imply, would never leave a paper trail.

If the allegations are true, what are the odds the judge and/or the prosecutors involved will be sanctioned?  Suggest betting lines for each in the comments.

Probation revocations decline slightly: Target resources, strategies toward revocation reduction

Here are a few details from TDCJ's "Report to the Governor and Legislative Budget Board on the Monitoring of Community Supervision Diversion Funds" published on Dec. 1, for those interested:

In FY 2012, 23,449 felony offenders in Texas had their probation revoked and were sent back to TDCJ out of a total 231,376 offenders under direct and indirect supervision statewide. Seven percent of those revoked were DWI offenders, 31% were first convicted on some sort of controlled-substances charges, mostly possession, reported TDCJ.

Revocations for "technical" violations declined, but not as much as is sometimes portrayed, according to the report. TDCJ reported 13,504 felony technical revocations in 2005 compared to 12,034 in 2012. "In FY2012, approximately 39% of offenders revoked to TDCJ for technical violations had absconded in the year prior to revocation, a slight increase from 36% in FY2011." So a significant proportion of the remaining "technical" violators stopped showing up at meetings with their probation officer and had a warrant issued. (That's a narrow category where stronger, HOPE-style, probation measures might be useful.) One third of felony technical revocations in 2012 were defendants convicted of controlled substances offenses, reported TDCJ.

One micro-trend Grits hadn't heretofore detected:

In FY2012, funding reductions closed five (5) residential facilities resulting in a loss of 181 residential beds. In addition, one (1) 90-bed facility in El Paso was closed for 8 months in FY2012 due to building maintenance issues. The closure of these beds during FY2012 resulted in a 10.6% decrease in the overall average CCF [community corrections facility] population between FY2011 and FY2012. However, due to the significant investments in residential treatment beds, the current statewide average CCF population represents approximately 300 more treatment beds used in FY2012 than in FY2005. 

Here are a few more details about specific local probation departments:

Tarrant CSCD increased felony revocations to TDCJ by 290 from FY2011 to FY2012; that number represents a 21.2% increase in revocations. Tarrant CSCD’s percentage of the felony population is 4.9% of the state, while their revocations represent 7.1% of the felony revocations to TDCJ statewide. The CSCD recently began auditing revocations between FY2010 and FY2012 to examine reasons for the observed increase in revocations. Initial results indicate that due to several issues relating to data collection and reporting, FY2011 revocations were under-reported. However, the observed trend of a decrease in revocations between FY2010 and FY2011 and an increase between FY2011 and FY2012 is accurate. Therefore, a more in-depth audit of FY2012 revocations is being conducted to examine reasons behind the increase.

Although the percentage of felony revocations to TDCJ is similar to their percentage of the statewide felony population, the continuing increases in revocations in Bexar CSCD are noteworthy. In FY2013, Bexar CSCD will be conducting research to determine the factors that increase felony revocations.

TDCJ-CJAD has been working with Collin CSCD since January 2009 to address issues leading to the increasing numbers of revocations to TDCJ. Collin CSCD indicated that they would be moving toward a more proactive rather than reactive approach to supervising offenders. Initial results show a decrease in revocations between FY2011 and FY2012 and TDCJ-CJAD will continue to support Collin CSCD in efforts to reduce revocations to TDCJ.

Changes in Hidalgo CSCD’s felony direct and indirect population are more likely due to reporting changes rather than changes in the population.

Felony revocations to TDCJ for all CSCDs are detailed in Appendix C (p. 28).

The report warned that for diversion programs to succeed will require adequate funding for local probation departments, since:

positive steps taken toward reducing revocations to TDCJ also mean CSCDs are supervising a more challenging population. As successful offenders are rewarded with early termination, the population under supervision is increasingly comprised of offenders with greater risk and needs levels. In addition, the percentage of new placements to probation that are classified as medium or maximum risk to re-offend is increasing, meaning CSCDs must continue to target resources and treatment programming toward the offenders most at risk to re-offend.

In the 2012-2013 biennium, 85 counties reported using some sort of progressive sanction model in their local probation programming (see p. 23). Appendix A (p. 26) provides a good recent history of legislative changes related to adult probation programming.

See here (pdf) for the full report, which has a lot more detail that may interest those in the biz.

Surveillance blimps a fine place to start military budget cuts

A US Air Force surveillance blimp, soon to lose funding

At Texas GOP-Vote, David Bellow laments that the Obama Administration will end a contractor-run program along the Texas-Mexico border operating blimps as part of what the Air Force called its Tethered Aerostat Radar System, or TARS, which "is an aerostat-borne, surveillance program." (If you, like me, didn't realize that "aerostat" is a synonym for a moored blimp, then we've both learned something today.)

Grits has gotta say, if the federal government must reduce spending, cutting the budget for surveillance blimps to me seems like a good place to start. (Reminds me of the alternate universe from Fringe.) Bellow reports that the contractor sent out an email to its employees, which he reprinted in full, announcing that the Air Force would cease funding for the project as of March 15, 2013. An employee who (understandably) insisted upon anonymity told Bellow that "Without these defense radars, low flying aircraft will go undetected. It will be open season for any drug/gun/slave smugglers, terrorists flying in with nukes, low altitude missiles, or even a full scale low elevation invasion/attack against America.” Uh huh. Those blimps and the Rio Grande were all that stood between us and a "full scale low level invasion/attack," says the anonymous guy who'll lose his job if the contract runs out. Lucky the river's still there. In reality, given the actual nature of border violence and the intense buildup of Border Patrol, customs agents and, often redundantly, the Department of Public Safety, along the Rio Grande, it's laughable to give this contractor's surveillance blimps much credit. One imagines the US Air Force feels perfectly secure they're up to job of stopping a "full scale invasion/attack" from the south without this company's services, since they're the ones who cut them loose. If you do call your Senator or Congressperson, as per Mr. Bellow's request, Grits would suggest telling them, "Support the Air Force's decision and don't spend one more dime on surveillance blimps."

If Sheriffs want reimbursement for 'blue warrant' prisoners, will counties reimburse state for incarcerating felons they send? Maybe they should

A commenter pointed to a lengthy report offered up yesterday by the Longview News-Journal's Sarah Thomas ("Jail officials seek reimbursement or bail for prisoners with blue warrants," Jan. 20) giving voice to the Sheriffs Association of  Texas' biennial lament that they must house prisoners jailed on "blue warrants," which means they've somehow violated their terms of parole and are being held until a hearing that will determine whether they're revoked back to prison:

Members of the Sheriffs’ Association of Texas met this past week to prepare for battle again with state lawmakers over an issue costing area taxpayers.

The contention is blue warrants, which are issued by the Texas Department of Criminal Justice Parole Division. They act as an order to arrest and hold parole violators in county facilities without bail or reimbursement — and therein lies the problem.

The biennial battle between county sheriffs and the Texas Legislature centers around counties being required to feed, bed and provide medical treatment for the state’s inmates, often for months at a time.

Sheriffs across the state are looking for the 83rd Texas Legislature to pass a bill that would make parole violators eligible for bail or require state reimbursement to counties for their services.

“This is the No. 3 issue on our list after mental health and border security,” said Brazos County Sheriff Chris Kirk.

Notice that, like the police unions and prosecutors, the Sheriff's Association these days sees the Legislature as an opponent against whom they must "prepare for battle," in Thomas' words. Here are the latest data on blue warrants from a side bar accompanying the story:

Blue warrants by the numbers

• 4,104 blue warrant inmates are serving time in county jails.
• 1,651 of those inmates committed a technical violation.
• 2,453 blue warrant inmates have new charges pending.
• 64,302 inmates (including blue warrant offenders) are housed in jails across the state.
• 6.4 percent of all county inmates are blue warrant inmates.
• 89 of the state’s 254 counties have no beds available.

          Source: Texas Commission on Jail Standards

Here's the December 1, 2012 county jail population report (pdf)  from the Texas Commission on Jail Standards, where they appear to have gotten their data, with one key exception: I have no idea where that last "no beds available" bullet comes from. Texas jails were at 68% of capacity statewide and by my count, just ten counties reported occupancy rates above 90%. Two of them were quite small (Duval and Ochiltree) and several others' occupancy rates were boosted by contract prisoners held for other agencies (McLennan, El Paso, Fannin). With 614 contract prisoners compared to just 90 parolees, El Paso's full jail is volitional; ditto for Fannin. Regular readers may recall that high jail costs from "tuff on crime" policies by the new McLennan County DA have become a political issue as the county has been forced to raise taxes to pay for rising jail costs.

Four mid-sized counties - Hidalgo, Ector, Webb and Parker, five if you include McLennan - were the largest jails at more than 90% capacity with only homegrown prisoners. There were 292 parolees in those five jails, which collectively held 3,525 inmates on December 1, meaning 8.2% of the total inmates in those few, crowded jails were there for blue warrants. The big outlier among them, though, was McLennan County, where for reasons this writer fails to fully understand, alleged parole violators made up 13.2% of the county jail population, compared to 7.6% in Hidalgo County, 7.9% in Ector County, 4.8% in Parker County, 5.6% in Walker, and 5.1% in Webb. Why would the number be so much higher in McLennan? The question deserves further investigation.

Looking beyond those few, crowded jails to the big picture, however, compared to just a few years ago when the largest Texas counties exceeded capacity and Harris County was shipping prisoners off to Louisiana, Texas' jail overcrowding problems have largely subsided statewide, especially in the largest jurisdictions. More could be done, and indeed a time of declining crime might be just the historical moment to do it, but the jail overcrowding crisis isn't nearly as immediate as it was just a few sessions ago, for a variety of reasons.

The Sheriffs face two big barriers to passing their blue warrant bill: 1) the Legislature does not appear to be in the mood to pick up more county costs (e.g., a request to pay for unfunded mandates related to indigent defense was rebuffed in the initial House and Senate budgets.), and 2) Governor Rick Perry already vetoed legislation to allow bail for parole violators six years ago, so as long as he's Governor, he's the main person that needs convincing. Perry did sign a new law last session allowing parole officials to use summons instead of "blue warrants" in some circumstances where the parolee did not pose an flight risk or immediate threat, but I've seen no data on how often, if at all, that new authority has been used.

There's an extent to which Grits sympathizes with the Sheriffs on this issue and I've supported their bill  to allow bail for blue warrants, although jail populations have declined since the governor's veto and the immediate need to free up space has lessened in the largest jurisdictions. But in the big picture, the counties wouldn't want the fiscal logic they suggest applied across the system. Would county prosecutors seek such long sentences if the state billed the local county-commissioners court for the cost of defendants' incarceration, including the medical bills for elderly prisoners, etc.? If the state agreed to pay for 100% of blue-warrant costs, would the counties in turn agree to pay the cost for the state to incarcerate everyone they send to TDCJ? Not a chance. So in the big picture, such complaints ring hollow, though the short-term costs the Sheriffs are reacting to are certainly real enough.

Central Unit not 100% closed: Targeting prison closures based on economic, budget benefits

The Austin Statesman's Mike Ward reported Friday evening ("Over a year after closure, state prison still runs some operations," Jan. 18) that, despite de-funding in the last budget, TDCJ's Central Unit in Sugar Land is not yet fully closed, though the prisoners there were moved to other units. The reasons won't surprise anyone familiar with the Central Unit's history - it was formerly the Imperial Unit, built to provide leased convict labor to the Imperial Sugar Company and one of the facilities at the heart of the agency's agricultural operations in the region, which are extensive.

Prison officials say moving out the convicts was the easy part, especially with excess capacity in other prisons. But it’s taken more time to shut down the other operations at the Central Unit, which served as a regional warehousing and distribution point for a variety of goods to keep running the more than two dozen other prisons in the area. Plus, officials said, the lockup farmed various crops on several hundred acres.

With the previous residents gone, convicts and guards had to be brought in from another prison about a mile away to continue those operations. ...

“It’s taken us a while to move those operations,” said Brad Livingston, executive director of the Texas Department of Criminal Justice. “Both were significant projects.”

A new warehouse is being built at the Terrell Unit, down the road to the south, and new agriculture facilities will be added at the Pack Unit near Navasota — at an additional cost of nearly $7.6 million.

The final closure date for prison operations at the Central Unit site? Probably in July, officials said, after the new warehouse and the ag operations are complete.

When prison operations finally cease, the site is to be turned over to the General Land Office to be sold. “We’re still waiting,” said Land Office spokesman Jim Suydam.

While I'd prefer the facility had closed more quickly so the budget savings could be more easily argued, it sounds like the delay won't affect plans to move forward with closing more prison units. "[L]egislative leaders and prison officials agree that additional closures are likely," Ward reported.

For my part, the Central Unit's economic role in the prison system's ag business was one of the reasons I favored it as a prime target for closure. Not only was Central's historic role symbolic, breaking it up would end some of the last remaining physical vestiges of the old convict leasing system, replaced to a lesser and far-less brutal extent in the modern era by in-house agricultural operations on the agency's vast real estate holdings. Grits isn't surprised it has taken longer than expected to untangle a century's worth of economic ties wrapped up in the Central Unit's operations, but I'm glad it's happening.

In general, criminal-justice economics requires a long view. Prisons take a long time to build and once built cannot be easily de-commissioned. The effects of raising or reducing already-long sentences may not show up in state budgets, in practice, until a decade out, but the failure to make that calculus has been the main reason why Texas prison budgets and populations ballooned. It took Texas four decades to get in the fix we're in and the ship of state turns slowly.

Notably, the two units Sen. Whitmire has suggested for closure - the Dawson State Jail in Dallas and the Mineral Wells pre-parole unit - are both operated by a private prison company, Corrections Corporation of America, and arguably simply ending a contract requires less wind-down time than closing one of the state's oldest units whose facilities were an integral part of their regional ag operations. (Grits should mention that these are the two units this blog predicted were most likely next on the chopping block back in August 2011.)

A big reason the Central Unit was considered "easy" to close was that the local chamber of commerce crowd wanted the land there opened up for development. A similar dynamic is the main reason why the Dawson State Jail is on the list. It stands on a site where the city of Dallas would like private developers to construct what's been dubbed the "Trinity River Project."

Looking strictly at property in a similar position vis a vis real estate development interests, Ward noted back in 2011 that the state might consider more prison closures in Fort Bend County: "a new high school and homes have popped up near the Jester I Unit. A new intermediate school and strip-center have opened just across from the Jester III and IV prisons. Custom homes, some valued at about $1 million, back up to the Vance Unit. Prison cotton fields and livestock sheds now sit alongside for-sale signs along Texas 99 that bisects the former prison farms."

OTOH, Huntsville ISD has found its property tax revenue choked off because of vast tax-exempt TDCJ holdings in Walker County. An economic argument could be made for targeted closures and property sell-offs there. Or, the Legislature could consider closing one or more of the rural units having the most trouble maintaining adequate staffing. If legislators decided to consider prison closures beyond Dawson State Jail and the Mineral Wells unit, those might be some of the logical options ripe for consideration, one would think.

Just as past Legislatures that approved Texas' prison expansions, authoring an array of new felonies and "enhancements," didn't have to budget the real, long-term costs of their policies at the time they enacted them, the economic benefits of de-incarceration won't be immediate, but in the long-term will be far more significant than just tinkering around the edges of the corrections budget.