With California de-incarcerating, Texas leads states with most prisoners

Texas now has the largest prison population of any state after California reduced its prison population by tens of thousands, as directed by a federal court order. Reported the Sacramento Bee:

California used to have the nation's largest state prison system, topping 173,000 inmates at its peak in 2006. But since a law took effect last year that shifts responsibility for less serious criminals to county jails, the state has reduced its prison population and is no longer the largest in the nation.

California now has fewer than 136,000 state inmates, eclipsed by about 154,000 in Texas. Florida previously was third, according to 2010 figures from the federal Bureau of Justice Statistics, and currently has about 100,000 inmates.

The reduction in California was ordered by federal judges in a decision backed last year by the U.S. Supreme Court. The courts ruled crowded prisons were causing poor care of sick and mentally ill inmates.

For the record, California's population is nearly half-again as big as Texas' (49% larger, according to the 2010 census), so for our prison population to outstrip their's speaks volumes about overincarceration here.

Comparing inmate population estimates in the story for the four largest states in the 2010 census makes the case even more starkly: Texas imprisons our citizenry 69% more frequently than in California, and at more than twice the rate as New York state. This table compares 2010 census population and crime rates to the approximate number of people in prison for the four largest US states (prisoner totals rounded to match rounded totals from the SacBee article; crime rate source here).


Notice that New York's violent and property crime rates per 100,000 people are substantially lower than here in Texas despite us locking up twice as many people per capita. Indeed, all these states see less property crime per capita than does Texas, and only Florida (another high-incarceration rate state) has a higher violent crime rate among Texas' big-state peers.

The other day Grits ran through a series of hypotheses regarding why crime has continued to decline nationwide despite what appear to be countervailing economic and sociological trends. For those who believe that crime has declined mainly because of "tuff on crime" strategies by the government locking up large numbers of criminals, how do you reconcile New York's success at crime reduction with that state's relatively low incarceration levels? If locking up more people improves safety, why aren't Texas' crime rates lower than in California, or in the Empire State?

Use federal grant funds to train forensic scientists

Last week at the Forensic Science Commission's "roundtable," a common lament was that there exists no state-level source of training and continuing education funds for forensic scientists and technicians comparable to those for prosecutors, defense lawyers and judges. Many agencies have slashed or eliminated training budgets, we were told, with the situation especially acute at "fee for service" labs. I'd suggested some of the federal grant funds flowing through the Governor's Criminal Justice Division toward "border security" measures would be a good fit for that purpose. So I was pleased to see this press release announcing training for Texas crime scene investigators financed through the CJD. From the lede:

The Texas Forensic Science Academy (TFSA) at TEEX has received a $425,000 training grant from the Governor’s Office, Texas Criminal Justice Division. The grant will allow TFSA to deliver 27 tuition-free courses to over 540 crime scene investigators across the State of Texas. The grant also provides funding to convert its entry-level Basic Criminal Investigation course to an on-line course for easier access statewide.

After Texas eliminated federal grant funds to the state's regional drug task forces in 2006, Gov. Rick Perry shifted a great deal of money which previously sustained them to various border operations by DPS and pork-barrel grants to local agencies, some of which have been criticized for delivering little bang for the buck. Grits has little doubt that money would be better spent ensuring forensic scientists have adequate training (not to mention bolstering indigent defense), and am glad to see the funds going toward that purpose. The same pot of money should be used to improve training in other forensic fields.

Uncertainty at key committee chair slots clouds criminal-justice expectations

Brandi Grissom at the Texas Tribune a couple of weeks ago had an article first published behind their Texas Weekly paywall discussing the approaching transition in leadership on criminal justice issues at the Texas Legislature. Grits failed to mention the story when it came out in part because, among folks who work on the subjects this blog covers, uncertainty surrounding legislative leadership has for many months hovered over nearly every conversation. It's not "news," exactly, but neither will (nor can) the issue go away except with passage of time. Everywhere I've gone recently, it seems, someone brings up the question, so let's pose it: Who will chair the House Corrections, House Criminal Jurisprudence, and Senate Criminal Justice Committees next session?

The Case of the Missing Reformers
On the House side, both committees lose their chairmen this election cycle, with Criminal Jurisprudence also losing its vice chair. There are few obvious candidates to fill either slot as able or experienced as those departing, so either someone will surprise us or a leadership vacuum could form.

Corrections Chair Jerry Madden is responsible with state Sen. John Whitmire for Texas' major de-incarceration reforms passed in 2007 and has immersed himself deeply into the issues and agencies within that committee's jurisdiction. His departure will be a profound loss, especially if his replacement does not support continuing and extending Madden's work.

The problem is just as pronounced in Criminal Jurisprudence, where Chairman Pete Gallego retired to run for Congress. All the current heavyweights and senior members will soon be gone and the committee completely revamped. The absence of Reps Hartnett and Aliseda will be particularly hard-felt losses in terms of smarts, experience and gravitas. Chairman Gallego carried many of the innocence-related bills that passed in 2009 and 2011, including eyewitness ID reform, corroboration for jailhouse snitches, and expanding access to post-conviction DNA testing. Who if anyone is prepared to become a comparable champion in that slot?  ¿Quien sabe?

The Case of the Missing Gatekeepers
Besides any proactive legislation, there's also the arguably just as important gatekeeper role that a strong chairman must play, a role best served by a chair who's developed sufficient policy expertise (both on their own and within their staff) to vet proposals and cull as much of the foolish, political stuff as possible. This is an incredibly important but under-appreciated role because a lot of bills filed on criminal justice topics are simply terrible ideas suggested by ill-informed or self-interested people.

My principal critique of Pete Gallego's chairmanship was that he refused to play a significant gatekeeper role on criminal-penalty enhancements, basically deferring to the "will of the members," as they say, whose knee-jerk reaction was too often to criminalize and punish anything they didn't like, usually with a first-order assumption that harsher punishment is "better" punishment. (Typically, the Legislative Budget Board claims that this doesn't cost anything.) For the most part Chairman Gallego let that gatekeeper task fall unhappily to Criminal Justice Committee Chairman John Whitmire in the Senate, whose lonely but heroic efforts to mitigate the wave of criminal penalty enhancements coming out of the Texas House over the last decade go too-much unappreciated.

John Whitmire's long view
Speaking of whom, on the eastern end of the capitol, state Sen. John Whitmire has commanded the Criminal Justice Committee for years. But if Lt. Gov. Dewhurst wins his runoff and someone else takes his place, that chairmanship could be one that shifts to a Republican. In that case, some statehouse wags suggest state Sen. Joan Huffman as a possible replacement. I don't always agree with Sen. Whitmire, but from a perspective of both legislative experience and institutional memory, on its face that'd be a huge loss. It also would call into question whether Texas will continue down a reformist path or begin building more prison units.

Sen. Whitmire famously  partnered with Rep. Jerry Madden to pass Texas' much-vaunted de-incarceration reforms, as well as helping shepherd Texas' innocence bills through the senate side of the process. Some fear those causes would find a much less sympathetic ear if Huffman were chair, and certainly she has not to date demonstrated similar priorities. OTOH, she's expressed reluctant support for the 2007 probation reforms and voted for much of Texas' recent "innocence" legislation, after opposing or seeking to weaken pieces of it. But the even bigger loss would be in sheer institutional memory: Whitmire chaired that committee (with John Bradley as his legal counsel, ironically) when Texas rewrote our penal code in 1993, setting the stage to fill the vast new prisons authorized for construction during the Ann Richards era. So when, in the wake of the 2003 budget crunch, the Lege of necessity began tinkering with the system, culminating in Texas' much-praised 2007 prison diversion package, Whitmire exhibited a scope of institutional knowledge coupled with a capacity for legislative nuance that few in the capitol could match.

'Heavy is the head that wears the crown'
All that said, heavy is the head that wears the crown. As any recent GOP House Corrections Committee Chairman (Madden, Allen, Haggerty, Hightower) would tell Sen. Huffmn, practical reality on many of these questions quickly trumps ideology when it comes to legislative policy and budget writing. Naysaying and bomb throwing is something one does from the bleachers: As chair, IMO the budget crunch combined with the vast expense and immense, bloated size of the justice system would force upon Huffman the same set of Hobson's choices imposed on Texas' Republican legislative leadership for the last decade. If that's true, her past, publicly expressed positions might not be an accurate predictor of how Sen. Huffman would behave as chair.

For that matter, Whitmire is not going anywhere and he remains arguably one of the most effective senators in the upper chamber, even with Dems in the minority. Time will tell. And of course, if Lt. Gov. Dewhurst fails to win his runoff - not a sure thing, by a longshot - it may be a moot point anyway.

'Waiting is the hardest part'
Tom Petty warbled that "the waiting is the hardest part," and that's the situation here: We'll know after the runoffs whether there will be a new Lt. Governor. (One supposes Dewhurst's replacement could re-up Whitmire's chairmanship, though conventional wisdom says he or she would shuffle the deck and name their own people.) But on the House side, uncertainty will remain until late January of next year, perhaps even prolonged by Rep. Bryan Hughes' announced Speaker's race. (Those East Texas boys are troublemakers, aren't they?) By that time, new House chairs will be learning of their responsibilities just at the moment when the process begins in earnest, with little planning or lead-in time to approach the session with a coherent, consistent strategy. The risk is that chairs thus appointed are weaker, not well-informed on the system's details, and worst of all reactive, failing to set an agenda or play a gatekeeper role.

To Grits, there's another factor even more disconcerting than the leadership transition: The Texas House next year will include a sizable population of freshmen and sophomores who in many cases barely yet understand how the legislative process works, much less the criminal-justice system, and are ill-suited to take on the types of leadership roles that will be much more immediately thrust upon them, not just in 2013 but also the years immediately ahead. This is one of several reasons Grits is not a fan of term limits: The learning curve is too steep for legislators to learn all they need to run complex corrections (or health, or education, or transportation) systems in just a few years of part-time attention. The Whitmires, Maddens and Gallegos of the world have been thinking about these topics nearly round the clock for many years. Anyone who replaces them has a lot of quick thinking to do, and that's if they hope to merely tread water.

Louisiana's de-incarceration reforms

From a sidebar to a story in the New Orleans Times-Picayune, here's a summary of the just-passed sentencing reforms from the Bayou State aimed at reducing their nation-leading incarceration rate:

Changes to Louisiana sentencing and parole laws in 2012

Amid increasing attention to Louisiana's world-leading incarceration rate, the 2012 Legislature adopted and Gov. Bobby Jindal has signed several measures that alter the state's sentencing and parole laws, primarily for nonviolent offenders whose crimes involved drugs or property. The Louisiana Sentencing Commission recommended nearly all of the changes. They include:

• Merger of separate pardon and parole boards (House Bill 518): Two members will be added to the five-member pardon board, and the seven-person panel, sitting as a "parole committee," will decide whether to release eligible prisoners on parole. The existing parole board will cease to exist.
• Discretion on mandatory minimums (House Bill 1068): Prosecutors, defendants and judges are given authority to make pre-trial plea agreements or post-trial sentencing agreements that call for lesser punishment than the minimum required in existing criminal statutes.
• Parole for nonviolent, second-time offenders (House Bill 1026): Certain second-time offenders, excluding those whose crimes were sexual in nature, could be eligible for a parole hearing after serving one-third of their sentences, rather than the current requirement of one-half.
• Parole for nonviolent offenders sentenced to life (House Bill 543): Certain nonviolent, good-behavior, low-risk lifers will be eligible for release earlier, including for the first time those sentenced to life without the possibility of parole. The change excludes anyone whose crimes were sexual in nature. Inmates who were sentenced between the ages of 18 and 24 must serve at least 25 years to be eligible. Those sentenced between ages 25 and 34 must serve at least 20 years. Those sentenced between ages 35 and 49 must serve at least 15 years. Those sentenced at age 50 or older must serve at least 10 years.
• Expanded re-entry courts (House Bill 521): A pilot court program that assists released nonviolent offenders with job training and other re-entry issues will be expanded into two new judicial districts.
• Streamlined discipline for offenders on probation (House Bill 512): In certain instances, officers will be able to use administrative sanctions to discipline offenders without taking them back to court.

See another summary of the legislation from Pardon Power.

Ward: Sunset may shift parolee supervision back to parole board

Mike Ward at the Statesman has more coverage of the recent TDCJ Sunset hearing, though IMO he overstates the chance that the parole board's authority will be substantially expanded. The story opens:

Discretionary funds from commissary to asset forfeiture money bolster local law enforcement budgets

At the Houston Chronicle on Sunday, James Pinkerton offered up a rare adumbration of all 18 county-level pots of "discretionary funds" available in particular to the District Attorney and the Sheriff. ("Harris County has access to millions in discretionary funds," June 10) The sources? "The discretionary funds are raked in after seizures from gambling raids, drug busts, or amassed from fees for writing hot checks or evading county highway tolls."

Further, "Seven of the 18 funds, including a million-dollar fund overseen by Harris County Attorney Vince Ryan, are not required to be audited and don't have to report their spending." Countywide, "The 18 funds - controlled by the sheriff, district attorney, constables, county commissioners, county attorney and fire marshal - hold a total of $38 million, according to the most recent accounting by county auditors."

At the Harris County Sheriff, the jail commissary is the single biggest revenue producer and the Sheriff controls revenue from that line item entirely. (Funds from phone services go into the county general fund.)  Sheriff's spokesman Alan Bernstein commented to Grits that with a total annual budget of $392 million, the $16.1 million in discretionary funds isn't much of a "'cash stash,' as the story calls it," which is true as far as it goes. It's also a fair amount of unfettered money during a tight budget environment. Bernstein says the Sheriff has not spent discretionary funds on either overtime at the jail nor for staffing patrols.

Sheriff Garcia's spokesman told the Chronicle such funds are justified because "criminals are helping to pick up part of the tab." But in the case of commissary profits (and phone service) it's more likely the alleged criminal's family footing the bill, which isn't exactly the same thing.

Hypothesizing reasons for continued crime declines

Reported crime including both violent and property crime continued its remarkable decline in the first half of 2011, reported the FBI:

Preliminary figures indicate that, as a whole, law enforcement agencies throughout the Nation reported a decrease of 6.4 percent in the number of violent crimes brought to their attention for the first 6 months of 2011 when compared with figures reported for the same time in 2010. The violent crime category includes murder, forcible rape, robbery, and aggravated assault. The number of property crimes in the United States from January to June of 2011 decreased 3.7 percent when compared with data from the same time period in 2010. Property crimes include burglary, larceny-theft, and motor vehicle theft. 

Here's a table including Texas cities over 100,000 people comparing reported crime rates for the first six months of 2010 and 2011. Notably, a few towns where murders had virtually bottomed out saw significant year-to-year increases, including Amarillo (3-8), Arlington (6-12), Beaumont (3-7), and El Paso (1-14). But overall murders declined because of offsetting reductions in other jurisdictions, particularly Houston (143-90) and Fort Worth (32-18), along with more modest declines in most other places.

Most Texas jurisdictions saw declines in reported violent and property crime in the first six months of 2011 compared to 2010. Despite reduced federal grant funds. Despite a faltering economy and rising wealth disparity. Despite increased gun ownership. Despite lofty drop-out rates in high schools. Despite depopulating Texas youth prisons, reducing their inmate numbers from 5,000 to 1,100 since 2007. Despite Texas releasing more than 70,000 adult inmates per year from prison back into their home communities. All that's going on and crime is still declining. So what's causing it?

Grits believes the answer lies in a confluence of several possible reasons. First, it must be acknowledged, the best econometric estimates (Spelman, Levitt) say around one-quarter to a third of crime reduction in the '90s came from locking up more criminals for longer stretches, which makes sense given the vast scope of expanded incapacitation. But those same models showed incarceration levels had long since passed the point of maximizing marginal utility (in the economists' jargon). Based purely on a cost-benefit equation, wrote Spelman, "Enormous cutbacks - reductions of 50% or more in the prison population - are not difficult to justify and would probably save the US public billions of dollars each year. Certainly there is little economic justification for continuing to build."

So those who argue most strongly for the effectiveness of incarceration at reducing crime say we've already gone to that well too often. And anyway, in Texas crime continued to decline even after we stopped building new prisons. Incarcerating ever-more people can't be the only factor. So the question remains, if expanded imprisonment accounted for a quarter to a third of the '90s crime decline, what accounted for the rest, and why does crime keep falling now that incarceration (even in Texas) has leveled off?

Our friends at the Texas Legislature might suggest that new probation and parole programming effectively reduced incarceration levels without harming public safety, and because I supported them, I'd love to give the 2007 reforms credit. But the trend is national, not Texas-specific, so even if that had a positive effect, it can't explain it all.

My own favorite theory: Young people spend a great deal of time engaged with technology like the internet, video games and cell phones that didn't exist 25 years ago. These activities occupy time of teens and young adults who are the most likely to commit crimes. The kid perfecting his skills at Grand Theft Auto V may not be preparing himself for the job market, but he isn't out stealing my car.

On property crimes, there's an hypothesis that the rise of cheap, mass-market goods has contributed to reducing theft because lots of things we own have relatively low resale value and simply aren't worth stealing anymore. The list of items most often stolen bears out that trend, consisting mainly of things that aren't cheaply produced or where brand value trumps utility among callow minds.

Some theorize that improved pharmacology reduced crime, both thanks to improved antipsychotic and anti-depression drugs for adults and potentially because of earlier diagnosis and more frequent medication of mental illness among juveniles. At a gut level, Grits remains skeptical of that explanation, but there's inarguably a time correlation.

James Q. Wilson has cited research to argue that "reduction in gasoline lead produced more than half of the decline in violent crime during the nineties" because of lower lead-levels in the blood.

Professor Steven Levitt, co-author of the book Freakonomics, has provocatively argued (to paraphrase) that legalization of abortion and expanded access to family planning services during the 1970s reduced crime in the 1990s by enhancing women's control over their reproductive cycle and thus reducing the number of unplanned, unwanted children coming of age in that period.

Our friends at the NRA might suggest that the expansion of "concealed carry" laws to three dozen states contributed to deterrence, though that explanation fails to explain parallel declines in the other states and Canada, and Grits doesn't believe the practice is widespread enough to explain the observed crime decline.

Similarly, for Texas and other states with significant Latin American immigration, legal and otherwise, immigrants tend to commit crimes at much lower rates than US citizens and their out-sized presence could explain lower crime rates. But just as with concealed carry laws, that explanation doesn't account for (larger) crime drops in New York and other parts of the country that didn't see the same immigration wave. (Notice the theme: For several of these it's difficult if not impossible to link correlation and causation.)

In Texas (Grits can't speak for elsewhere), one seldom discussed factor may be the evolving makeup, culture and revenue streams of criminal gangs. Historically, conventional wisdom held that criminal street gangs primarily sought to nail down turf in their hometown for retail drug sales and sometimes extortion, tagging neighborhoods to mark their territory, etc.. But in Texas today the most important gangs are prison-affiliated organizations, some of which have become arms of transnational drug smuggling cartels out of Mexico, sometimes even working as paid assassins south of the border. Their focus is less on controlling a piece of turf in a Texas town so much as maintaining a transit corridor through which drugs may be smuggled to the rest of the country. They're still dangerous criminals but the focus of their business (and often, their violence) has changed along with the sources of prohibition-driven profits.

Finally, there are usually a few, typically anonymous zealots/trolls who show up whenever FBI crime data are reported to claim that they far understate actual crime, much of which, the argument goes, remains forever unreported. (Often this absurd construction attributes unreported crime to the success of the "stop snitching" meme.) But Grits believes those arguments are debunked by essentially similar trends demonstrated in national crime victimization surveys, which also show crime declining. I'm willing to believe numbers are juked in some jurisdictions, but that's something that must be demonstrated, not merely alleged.

Why do you believe crime is declining? Are the reasons related to things the justice system is or isn't doing, or something else entirely? And even if the answer is "something else entirely," is that something that government can double down on to reduce crime, or simply a happy, random accident that cannot be intentionally replicated? Your guess is as good as mine, so what's yours?

H/T: Sentencing Law & Policy

Who gets pardoned?

NBC Prime Time News and Prof. P.S. Ruckman at the blog Pardon Power recently highlighted the pending pardon application of Stephen Arrington, a former Navy diver once convicted of drug smuggling who went on to become a Cousteau Society expedition leader and founder of youth-oriented nonprofits in the US and Fiji. In an email notifying me of the story, Ruckman asked simply, "Why not?"

See also recent blog posts on clemency-related subjects from your correspondent at the Pardon O. Henry! blog:

• Clemency in a time of crisis
• Iconic toy rooted in presidential 'pardon'
• The conservative case for the pardon power
• 'There's no reasonable person who really believes Clarence Aaron should die in prison'
• Pardon Power recites O. Henry history
• FAMM calls for investigation of DOJ Pardon Office

The academic article described in that first bulleted post is an especially timely exposition on the subject and well worth the read for anyone interested in clemency topics.

RELATED: The case for clemency: Pardon power too-long ignored among checks and balances

DPS on the Rio Grande: Border security, economic goals diverge

Texas has spent some $600 million on "border security" since 2007 on the ostensible grounds that the state must do the job if the feds won't. But one can point to little public safety payoff from the spending that's remotely worth such vast sums, and meanwhile more fundamental problems at the border go unaddressed.

The SA Express-News yesterday featured a pair of stories giving a good deal of detail about the day to day activities of DPS border security details, which some in local law enforcement have criticized as redundant and taking away from the agency's historic mission:

• New frontier for DPS is stopping smuggling
• Border security team in Austin focuses on Valley

The latter story offered this description of DPS' big-brotherish intelligence-gathering efforts related to border security:

The nerve center of the Texas Department of Public Safety's strategy for securing the Rio Grande is the Border Security Operations Center, an unassuming building tucked behind the DPS headquarters.

Opened in 2010, the BSOC is staffed by 18 people, including nine analysts and a Texas Ranger captain, as well as representatives from federal law enforcement agencies. They process tens of thousands of pieces of information from videos taken by helicopter pilots, images snapped by remote cameras, and reports from state troopers and local law enforcement about traffic stops.

The data is fed into TxMap system, a program that allows analysts in Austin and at seven joint operations intelligence centers along the border to visualize information such as pursuits, drug busts and where DPS assets are deployed.

The information is also distributed to local, state and federal agencies.

The main article focues in part on the culture and mission shift at DPS as a result of Texas' nine-figure border-security investment:

The Legislature has provided more than $600 million for border security since 2007, with most of the money given to DPS to target drug and human smugglers. The border operation today represents a small army, with specialized Ranger Reconnaissance Teams, new intelligence centers, patrol boats, helicopters and surveillance cameras watching for traffickers.

Even a high-altitude spy plane soon will be deployed.

It's a departure from DPS' traditional roles as highway patrolmen and a support service to local law enforcement agencies.

The so-called Ranger Reconnaissance Teams "have seized 78,000 pounds of drugs and arrested 76 people, according to DPS. They've also referred 1,103 illegal immigrants to federal agents." Some, though, questioned:

the need for DPS' involvement in border security when the Border Patrol is at an all-time high in personnel and funding. Meanwhile, they say, there is no indication that beefing up border security has hurt Mexico's drug cartels. 

“That money could perhaps be used for other purposes, as we already have Texas Parks and Wildlife” patrolling the river in boats, said Zapata County Sheriff Sigifredo Gonzalez. “Ranger Recon Teams? I don't really know what they've done as we're not privy to that information. DPS is doing the best job they can, but I do, however, feel that their way of working is totally different from local law enforcement.”

We also learn that, after canceling an earlier program to install dozens of cameras along the border, DPS is doubling down on the idea with "Operation Drawbridge," in which:

the department is installing 500 cameras along the border, part of an electronic monitoring program called Operation Drawbridge. It's an update of the much-criticized Texas Border Watch Program, a multimillion-dollar effort by the state to set up video cameras along the border. It was recently canceled after only a few dozen cameras were put in place over more than three years and unimpressive results.

When a Drawbridge camera is triggered, it sends an image to DPS' Border Security Operations Center in Austin. If it shows something of interest — immigrants or drug mules — the image is saved and added to the stream of information DPS shares with other agencies.

Such "border security" efforts, though, are dealing with symptoms - in a particularly ham-handed way, no less - that can't mitigate more fundamental trends at the border exemplified in another recent story (June 1) from the Express-News business section, "Bill aimed at reducing wait times at the border." Give it a quick read; in the big picture, the problem Sen. John Cornyn aims to address in that story is more critical to border security than any law-enforcement angle.

Here's the bottom-line dynamic causing this now-chronic situation (and Grits has been discussing these issues for years): US trade with Asia is at an all-time high and growing each year at a massive rate, but the United States is building no new Pacific port capacity for reasons related to historic land use, tourism, and environmental concerns. Meanwhile, Mexico is constructing a series of super ports on its western coast, along with a massive series of highways funneling cargo mainly toward Nuevo Laredo (read: I-35) and the various bridges crossing into Texas.

The volume of legitimate north-bound traffic is so vast that rigorously searching all of it for drugs and contraband is a fantasy, particularly when, as reported in the story, the Customs and Border Protection agency is 6,000 agents short. DPS is spending all this money to police the areas in between the checkpoints, which is also mainly where the Border Patrol beefed up during its massive recent hiring binge. But the largest volume of contraband always has and always will come over the international bridges right past federal (and now state) officials because the volume is simply too high to catch all of it. Moreover, profit margins on wholesale drugs are high enough to incur losses without undermining their business model.

Meanwhile, the existence of maquiladora plants operated by US companies on the Mexican side of the river - not to mention increasing export volumes as the urban, Mexican middle class has expanded post-NAFTA - mean southbound commercial traffic is growing as well. These trends are not reversing, and even if they did (perhaps in some nativist, "shut down the border" fantasy), Texas' economy would be among those harmed the most.

Seldom discussed, but critically, anti-contraband measures contribute tremendously to backed up northbound traffic at international bridges, exacerbating the infrastructure shortcomings Sen. Cornyn and border officials lamented in the June 1st story. But media and policymakers never seem to connect the dots. Given the enormous expense and so few tangible public safety benefits, Grits considers Texas' border security spending almost entirely wasted. This is a federal issue and the main thing the feds need to do is dramatically increase capacity - both through expanded infrastructure and customs staffing - to process vastly more legitimate border traffic in both directions.

Posthumous exoneree Tim Cole's memory honored in Lubbock

In Lubbock, the city has approved a memorial for Timothy Cole, who died in prison after being falsely convicted of rape and was later posthumously exonerated. Reported the Lubbock Avalanche Journal:

A bronze relief sculpture and granite marker will pay permanent tribute to Timothy Cole, just blocks away from the Texas Tech bar district where he was arrested for a crime he didn’t commit.
His brother, Cory Sessions, helped sway the Lubbock City Council to support the memorial to his brother, who died imprisoned in 1999 after being wrongfully convicted in the 1986 sexual assault of a fellow Tech student.

“Tim may be remembered for things that happened after his life, but we remember him for what happened during his life,” Sessions said Thursday morning at the council meeting. “The most important part of his headstone is the dash, and that’s what we remember Tim by.”

The council approved a renewed proposal by Councilman Todd Klein to honor Cole with a memorial on city property to be designated as a park at 19th Street and University Avenue.

Klein designed the proposal with the help of attorney Kevin Glasheen, who has represented several wrongfully convicted people seeking compensation, including the Cole family.

Glasheen said his firm would pay the estimated $25,000 for the monument, a granite marker with a bronze relief sculpture of Cole and text similar or identical to the text on a state historical marker located near Cole’s Fort Worth grave site.

He praised Cole for his demonstration of character throughout his trial and imprisonment, recalling how Cole would not admit guilt even if it meant he had a chance for parole.

“That kind of character and integrity is worthy of honor,” Glasheen said.

Suing over false police tips, why Dallas PD quit using spike strips, Kerry Cook gets DNA test, and more

Just a few odds and ends that didn't make it this week into their own, full posts:

• A court has ordered DNA testing in Kerry Max Cook's case, potentially presaging a long overdue habeas writ based on actual innocence for the Tyler man who spent 19 years on death row.
• A prosecutor in El Paso allegedly took bribes to dismiss family violence cases.
• More on the lawsuit alleging employment  retaliation by former TDCJ flack Michelle Lyons.
• Dallas PD has ceased using spike strips to end high-speed chases because of dangers to officers and the public. Fort Worth may follow suit: “As pursuit policies become more restrictive resulting in their reductions, stop sticks may be phased out throughout all of law enforcement,” Fort Worth police spokesman Pedro Criado said in an email. “It’s not worth injuring or killing an officer over. The debate has reached the Fort Worth Police Department.”
• A judge upheld the Texas prison system's ban on certain politically oriented books brought by Prison Legal News. Reportedly, "TDCJ has approved about 80,000 of more than 92,000 books sent to its inmates"
• Suing for a false police tip: After a false allegation regarding mass graves on their property last year from a purported psychic, a Liberty County couple has "filed a lawsuit against the Liberty County Sheriff's Office, the woman who first called in with a tip, and a number of media outlets that allegedly reported that dozens of bodies, including those of children, had been discovered"
• See a story on a Mexican-born artist/printmaker portraying Juárez drug war violence.
• The Christian Broadcasting Network, of all sources, has come out with a series titled "Nation of Criminals." Here are the titles so far:

Selling Prisons 'for Profit'
Gibson’s Blues: Endless Laws Criminalizing Business 
Web of Laws Creating Hosts of 'Accidental Criminals'   
'Overcriminalization' Making Us a Nation of Felons?

Web clips from TDCJ Sunset hearing

The group Texas IMPACT put snippets of video on their website of some of the reform-minded testimony at this week's Sunset Commission hearing focused on the Department of Criminal Justice, (discussed on Grits here) for those who didn't get to attend.

Go here to see the full, unexpurgated hours-long June 5 hearing, for those who'd like to watch the whole thing online.

Don't look now, the government is watching ... do you feel safer?

According to Men's Health magazine, four of the 15 American cities under the most government surveillance are in Texas:

• Houston (2)
• Dallas (6)
• Austin (7)
• Corpus Christi (13)
• El Paso (26)

You might expect more of El Paso would be under surveillance more than other cities because of military and border security installations and concern over feuding drug cartels in Juarez, but they're relatively far down the list. As per the question in the headline, to folks in Houston, Dallas, Austin and Corpus: Does so much surveillance make you feel a) more safe, b) less safe, or just c) like the government wasted your tax dollars on something pointless? Tell us in the comments, or feel free to suggest your own "d."

Ex-TDCJ flack sues agency over alleged retaliatory firing

Former TDCJ public information office Michelle Lyons has filed a federal lawsuit alleging she was fired in retaliation for revealing information about irregularities in agency time keeping, The Backgate blog reports. This should be interesting. Lyons is a woman who at this point likely knows where a lot of (figurative) bodies are buried.

Prisoners released in 2009 cost Texas $620 million extra thanks to increased length of incarceration

Inmates' average total length of stay in Texas prisons has increased 32% since 1990, according to a new report (pdf) from the Pew Center on the States, compared to a 36% increase nationwide. (See a press release touting the national study and a Texas-specific fact sheet.) Texas prisoners' typical length of incarceration falls just below the national average at 2.8 years compared to 2.9. On average, a Texas prisoner released in 2009 served eight months longer than his or her counterpart released in 1990.

By contrast, noted the New York Times, "In Florida, the average time served rose by 166 percent; in New York, 2 percent." (Notably, New York's crime declines have led the nation, flying in the face of the notion that longer incarceration times are the cause of modern crime reduction.)

Grits finds this data fascinating. Texas sentence lengths (on paper) declined significantly over the 20-year period, while the proportion of sentences prisoners served rose by even more and actual time served increased. The bulk of the Texas increase occurred in the 1990s, when the proportion of sentences served for violent and nonviolent crimes in Texas increased 101% and 99%, respectively.

For violent offenders, those trends flattened out after 2000, with sentences and the proportion served staying about the same ever since. But sentencing for nonviolent offenders remained dynamic and began to reverse itself. From 2000 to 2009, the average sentence length for nonviolent offenders decreased 68% (for reasons which elude me), but offenders served a greater proportion of their allotted time, so the decline in incarceration length came to just 37% over that period for nonviolent offenders.

All told, Texas prisoners released in 2009 who'd been convicted of a violent crime stayed in prison 44% longer than those released in 1990, while drug and property offenders served 14% and 15% longer sentences, respectively. The study was able to calculate that, for Texas prisoners released in 2009, the 8 months extra average length of stay compared to 1990 cost taxpayers an extra $620.1 million.

The report closes out discussing strategies used in various states recently to reduce incarceration times:

• Reclassifying offense types
• Amending mandatory minimum sentencing laws
• Using risk-based sentencing
• Expanding earned-time opportunities
• Changing parole policy and practices
• Making administrative changes to parole
• Enacting revocation caps

MORE: From KUT.

Texas pays to train prisoner for job the state then won't let him have

The Austin Statesman's Eric Dexheimer has an item about an ex-TDCJ prisoner who was trained while in prison as a barber on the taxpayers dime but was then turned down for licensing ("State government giveth, then taketh away," June 6). Asked Dexheimer, "Why would one branch of the state government buy a citizen something with public money only to then to have another branch take it away a few months later?" Why, indeed!

in an unusually eloquent presentation to Department of Licensing and Regulation commissioners, [Lynn] Mays noted that the cost of barber training wasn’t the only bill citizens had footed on his behalf:

“When I was incarcerated, I was in a correctional facility that was run by the state of Texas. Taxpayer money paid for programs that are called rehabilitation programs, therapeutic programs, that I successfully went through…I’m not here because I’ve broken the law; I’m here because I want to work. I’m asking for a chance to prove the system works.”

They denied him, anyway. The reason:

“Barbers have direct contact with members of the general public, often in settings with no one else present, and a person with a predisposition for crimes involving prohibited sexual conduct would have the opportunity to engage in further similar conduct.”

Mays, agency staff concluded, had not been out of prison enough time to demonstrate that he’d been rehabilitated.

Ironically, at the events Grits attended this week on forensic science, a frequent refrain lamenting the lack of qualifications in certain fields was that people are required to be licensed to cut hair but need no particular certification to perform most forensic analyses with the notable exception of DNA testing. Perhaps Mr. Mays should pursue a job at a crime lab?

MORE: From Texas Watchdog.

External review suggested for botched Austin Yogurt Shop investigation

Grits was fascinated to see this week that "The Austin Public Safety Commission on Monday passed a resolution that would establish a process and provide funding for the external review of selected major cold cases, starting with the infamous 1991 yogurt shop slayings." Here's why:

Vice Chairman Kim Rossmo ... [gave] a short presentation on the weak evidence that took two men to trial in the notorious murder investigation, which he described in a written statement in advance of the meeting as having "suffered from ‘tunnel vision' and ‘group think.' "

"It appears detectives are trying to twist the evidence to fit pre-existing theories, rather than adjusting their beliefs to accommodate the new DNA evidence," wrote Rossmo, a Texas State University criminology professor and former police detective. "A proper investigation requires an open mind and a constant exploration of alternative suspects. It appears this has not occurred in any meaningful way in the tragic Yogurt Shop Murders case."

At the meeting, Rossmo argued that:

"Groupthink" within the Police Department has hindered progress in the investigation, Rossmo told fellow commissioners. He said that investigators had failed to take a fresh look at the case, even as poor evidence gathered from a crime scene damaged from fire and water had contributed to faulty theories against the four teenagers originally arrested in the crimes, Rossmo said.

More than 50 people interviewed had falsely confessed to committing the crimes, but police had relied heavily on the confessions of the two teens whose convictions were later overturned, Rossmo said.

"There are strong emotions surrounding this case," he said. "However, strong emotions have been shown to interfere with clear thinking."

The Statesman noted that "Some commissioners said they did not agree with Rossmo's criticisms but voted in favor of the resolution because they said a fresh set of eyes could develop new leads." (See more from the Austin Chronicle here and here)

The Yogurt Shop confessions were so notoriously unreliable that, when the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit wanted to explore the subject of false confessions, they brought in a national expert who described the case as a textbook example of how they are obtained.

Likely Rossmo's suggested review stems from concerns raised in December by the Austin Chronicle's Jordan Smith that tunnel vision and hubris prevented police and prosecutors from pursuing other, more likely suspects even after DNA evidence disproved the state's theory and contradicted the confessions. Her reporting identified other problems besides false confessions, like APD reworking forensic results to support their weak case:

For example, the city's fire investigator, Melvin Stahl, concluded from reviewing the crime scene that the fire had started in a corner of the shop where supplies were stored. Later, after investigators obtained from [Michael] Scott a confession that he started the fire on the bodies of the girls by using an accelerant, investigators went out and got a second opinion from ATF agent Marshall Littleton that matched Scott's confession; Stahl then recanted his conclusions and reworked his theory to match Littleton's. "That stunk to high heaven," says [retired APD Sgt. John ] Jones. "That bothered me."

Having now learned much more from the Forensic Science Commission's Todd Willingham/Ernest Willis investigation about how flaky and unscientific arson investigations were in Texas back in the early '90s, we can't be surprised at such shenanigans, but they indicate how the law enforcement first identified a theory then cherry-picked or manufactured evidence to support it instead of looking at the evidence and deriving conclusions from it.

The case deserves the external review and I hope the commission does a thorough job. I also hope that prosecutors and APD can avoid taking justified criticism personally and reacting with hostility and defensiveness, which is typically what's happened before now. The case was botched, the prosecution was botched, and afterward officials seemed more interested in justifying their errors than correcting them or pursuing other viable suspects.

OTOH, it's been more than 20 years. Why review it now? Because those who do not learn from their mistakes are inevitably doomed to repeat them.

Forensic seminar materials, roundtable

For those who couldn't attend the event, here's a link to all the power point presentations and handouts from the forensic science seminar sponsored Monday and Tuesday by the TX Court of Criminal Appeals Criminal Justice Integrity Unit and the Forensic Science Commission.

In addition, yesterday your correspondent participated in an all-day stakeholder "roundtable" sponsored by the Forensic Science Commission consisting of forensic scientists (half of the invited bunch), prosecutors, attorneys judges and a few advocates like myself. The goal was to identify strengths and weaknesses of forensic science in Texas and outline a path for reform.

Grits promised not to blog details so discussions could be open and probative, but I did want to congratulate the FSC and especially their staff on a useful and constructive event. I've been working on some of these issues for years and this was the first place I've been where a) all the various constituencies, or most of them, engaged in substantive, detailed conversation about forensic reform topics and b) it was possible to have honest and constructive conversation because nobody was speaking in front of legislators, the FSC, or somebody else they felt they needed to impress. Grits was pleasantly surprised, learned a lot, and hope some of the ideas and suggestions compiled become action items going forward.

This roundtable was originally scheduled nearly three years ago, but when Gov. Perry appointed John Bradley to chair the commission, canceling the event was one of his first acts. So finally, after all this time, it was good to see the project implemented, and IMO well done.

AG ceases opposition to post-conviction DNA testing in Skinner case

The Attorney General's decision to cease opposing post-conviction DNA testing in Hank Skinner's case may finally put to rest the prosecutorial hubris displayed in a handful of jurisdictions since the Legislature expanded access to testing last year. After it became clear at a May hearing that judges on the Court of Criminal Appeals were likely side with Mr. Skinner, the AG "did an abrupt about-face and ended its years of objection to DNA testing," said the Fort Worth Star-Telegram.

In cases like Skinner's, Kerry Max Cook's, and the Lake Waco murders, where McLennan County DA Abel Reyna has vigorously opposed DNA testing, some prosecutors seemingly could not wrap their head around the new law after it passed the Texas Lege last year (as SB 122 by Ellis). Now, when DNA evidence might be probative, prosecutors basically have lost most grounds for objection: There were too many instances - particularly in Dallas - where prosecutors objected for years and when testing was finally done it revealed new innocence cases. But quite a few prosecutors ignored the new statute and continued to object to testing.

The Skinner case, had the AG not changed course, was poised to settle the issue as a legal matter. Since they backed down before a decision, there's still no precedent formally interpreting the new law. But it's pretty clear the current CCA understood the implications of the change and were prepared to honor it. This debate is now over, even if DAs from Smith and McLennan County don't realize it yet.

Grits has no opinion on Skinner's likely innocence or guilt. As Judge Elsa Alcala said at that May hearing, the evidence is "not overwhelming; it's circumstantial," and DNA has sometimes proven men innocent when circumstantial evidence seemed overwhelming. You simply don't know for sure until you test the DNA, which was the whole point of the new statute in the first place.

RELATED: See, "The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors."

here: Shttp://www.star-telegram.com/2012/06/04/4007441/texas-ag-relents-on-death-row.html#storylink=cpy

Debating punishment of juvie offenders

Via Sentencing Law & Policy, "The Room for Debate section of the New York Times has this new set of pieces discussing punishments for juvenile offenders." The debate centers on the questions, "When minors commit violent crimes, should they be treated differently from adults? Is prison effective as a punishment and deterrent for juveniles, or does it harden a young person who might otherwise recover?" Here are the relevant links:

• "Prison Is Too Violent for Young Offenders" by Gary Scott, inmate, San Quentin
  
• "In Sentencing, Remember the Victims" by Jennifer Bishop-Jenkins, National Organization of Victims of Juvenile Lifers
  
• "Behind Bars, Teenagers Become Prey" by T.J. Parsell, writer and human rights activist
  
• "Adult Punishments Should Be an Option" by Charles Stimson, Heritage Foundation
  
• "Prison Does Not Make Good Citizens" by R. Daniel Okonkwo, D.C. Lawyers for Youth
  
• "The Race Factor" by Jennifer L. Eberhardt and Aneeta Rattan, Stanford University
  
• "Seeing Juveniles’ Maturity, and Immaturity" by Laurence Steinberg, adolescent brain researcher
  
• "Teenagers Too Often End Up in Solitary" by Amy Fettig, A.C.L.U.
  
• "The Cost of Prison, in Dollars and Lives" by Michael Jacobson, director, Vera Institute of Justice
  

Facility age, design, and programming deficit hinder success of youthful offenders at TDCJ

Over at The Back Gate, a blog run by TDCJ corrections officers, staff at the Clemens unit have many critiques of the Youthful Offender Program - which houses Texas youth certified as adults - that didn't show up in Mike Ward's recent Austin Statesman article promoting adult correction models for juvenile offenders. Said the blog:

What Mike Ward didn't get is input from some of the 300 plus employees assigned there regarding the program. Several Correctional Officers sent us input on the program, and how it works. The employees don't bad mouth the administration, and are generally satisfied with the support they get from the admin there. The objections from line staff centered more around the structure of the program itself, and the fact that it was centered on the Clemens unit to begin with. Through open records, and from Correctional Officers assigned there, we have learned the following. Some of which is contrary to what Mr. Ward presented in his story.

1. The Clemens unit is #1 in the state this month for discovery of contraband items, to include cell phones.

2. The Clemens unit, built in 1893, and the add on housing areas in 1972, is basically falling apart from the inside out in the South Texas salt air. Violent YOP offenders are housed in cells that frequently come open on their own due to being outdated and un-repairable, and staff as well as other offenders have been assaulted as a result.

3. YOP offenders must be kept separate from other offenders, and the design of the facility makes it nearly impossible to accomplish that feat on a daily basis.

4. YOP offenders are not assigned jobs, and therefore do not work in outdoor hoe squads or garden squads as stated by Mike Ward. But maybe some labor wouldn't hurt.

5. The program itself is poorly constructed and doesn't take into account that many of these teens have long (40+) year sentences and are housed with offenders serving 5 years or less. Any teen will succumb to peer pressure. The teens come from the streets, many are prone to violence and have no concept of the programs content. Many are continuing disciplinary problems, but cannot be sent anywhere else in the state due to the nature of the program. 

See also a slideshow of pics from the Youthful Offender program that accompanied Ward's article Monday, and Grits' own discussion of the suggestion to model youth prisons after TDCJ's Youthful Offender Program.

TDCJ Sunset highlights

The Sunset Commission today heard testimony regarding the Texas Department of Criminal Justice. See a press release and recommendations from the Texas Criminal Justice Coalition to the commission. TCJC also conducted a survey  of corrections officers in conjunction with AFSCME, as well as a survey of incarcerated individuals and family members.

See initial coverage of the hearing here and here. I got to sit in on bits and pieces of it, veering back and forth from the Sunset hearing to a seminar on forensic science held by the Court of Criminal Appeals Criminal Justice Integrity Unit and the Forensic Science Commission.

There was some effective public testimony from an inmate family group I hadn't heard of before called "All Of Us Or None," which I'm told is active in California but relatively new to Texas. Several family members gave quite compelling testimony, while some former inmates showed up to advocate for vocational training at the Windham School District.

One of the more bizarre moments in the hearing came when city of Houston victim advocate Andy Kahan testified in favor of long-term "set offs" for violet offenders up for parole, allowing the parole board to push back their release by up to 15 years, modeling his suggestion on what he claimed (I haven't checked it) is a common practice in California. Normally, said Kahan, he wouldn't suggest following California's lead, but he had to give credit where it's due.

Grits wanted to stand up and holler from the back of the room, "Do you know what else they have in California? A federal court order to reduce their inmate population by 37,500!" But nobody from the dais called him on it. For the record: Moving to 15 year set offs for even a fraction of violent offenders would be a total budget buster.

Here are a few data from the parole board Grits found interesting: Hearing examiners for the BPP held around 20,000 revocation hearings last year, with another 8,000 or so parolees waiving their right to a hearing. Of those 28,000, there were around 6,400 revocations to prison. The agency is on track to revoke slightly fewer this year, the committee was told. Matt Simpson at the ACLU of Texas testified that parole-eligible TDCJ inmates number around 58,000 and cost the state a whopping $2.7 million per day, or nearly a billion dollars per year.

Sen. John Whitmire made some strong points while parole board chair Rissie Owens was testifying, complaining that TDCJ failed to provide treatment for prisoners until the parole board ordered it as a condition of release. Why shouldn't addiction or other problems be treated from the time they enter, he wondered? There was no good answer and the question was treated as rhetorical, but it deserves a response.

Presumptive DA's stoner husband gets freebie on DWI beef

This set of facts out of San Angelo is cracking me up:

Earlier this spring, the husband of first assistant District Attorney Allison Palmer, who is now the Republican nominee for DA in Tom Green County, caused an auto accident. He told police he'd been drinking earlier in the day and officers could smell the pungent aroma of marijuana in his truck. They brought in a drug dog which alerted and a search revealed a baggie with rolling papers, seeds and "small pieces of a green leafy substance."

The local police chief and state troopers were called to the scene, but Palmer was not arrested and instead taken to the hospital for minor injuries. He was never given field sobriety tests, refused a breathalyzer, did not have blood drawn, and out of more than 12 hours of dashcam footage from various police vehicles at the scene, he was never captured on video once during the incident. As a result, the Tom Green County Attorney dismissed charges TWO days after Palmer won her primary race, which seems particularly well-timed for her.

So the husband of the presumptive District Attorney gets a freebie, with the County Attorney stringing along the public - pretending he might still be held accountable - until after his favor to a colleague's pot smoking husband could no longer damage the wife politically.

Maybe Mrs. Palmer didn't know about her husband's pot smoking, police didn't intentionally avoid gathering evidence against him, and the County Attorney based his decision on the evidence as quickly as he could. Perhaps everything's on the up and up. But from a distance, it all seems like an instance of brazen hypocrisy combined with crass, good-ol-boy back scratching. The idea of the DA prosecuting the war on drugs while hubbie drives around San Angelo smoking out in his truck is really quite an image.

UPDATE/CLARIFICATION: Palmer was charged with reckless driving, reports the San Angelo Standard Times, and a Class C paraphernalia charge has been appealed to a County Court of Law. So no DWI or pot possession arrest, but charges weren't dismissed entirely.

Here we go again: Is TJJD creating juvie ad-seg at Texas youth prisons?

It sounds like the Texas Juvenile Justice Department will soon be implementing a juvie version of administrative segregation or solitary confinement in adult prisons, judging by a report yesterday from the Austin Statesman's Mike Ward.

In a memo to legislative leaders dated May 25, Cherie Townsend, executive director of the Texas Juvenile Justice Department, said the agency is developing plans for a 24-bed "secure intensive behavior intervention program" at the facility near Mart, about 10 miles from Waco.

Eight beds might open by the end of June, with the rest by Aug. 1, according to the memo obtained by the American-Statesman.

The memo also reveals that officials are developing a program "to serve the approximately 10 percent of commitments and recommitments who are responsible for the majority of assaultive behavior" in the agency's lockups.

Another building at Mart would be the site of that 32-bed program, for which Townsend said she intends to seek approval at a late June meeting of the agency's governing board.

Grits has already explained why I think that's likely to blowback, including potential litigation based on a federal settlement agreement that's governed solitary confinement at Texas youth prisons since the '80s. Time will tell: They're plowing forward with the idea, regardless.

Related: See, "Solitary confinement at Texas youth prisons: A brief history." Also, "Violence at youth prisons blamed on lax discipline; structural problems ignored."

MORE (6/4): A common theme in stories by Mike Ward on these topics is the false framing of the question to portray the state's options as a) treat juveniles like in adult prisons and punish with solitary confinement, or b) employ no consequences at all and let the inmates do whatever they want. He offered up another story in that vein today titled "Officials may look to adult prisons to help solve juvenile security problems," focusing on 63 juveniles who've been certified as adults and are serving time at the Clemens unit, where youth are on adult-style lockdown without the type of educational or treatment services provided at youth prisons:

At Clemens, such perks [rewarding good behavior] are unheard of. The youths wear prison uniforms, live in grimy, foul-smelling cellblocks without air conditioning and with chipped paint and graffiti on the walls. They might work in the fields.

Another difference is that youths at other lockups can be serving time for both determinate or indeterminate sentences, meaning they can get out sooner if they behave and complete their programs fast. In the Clemens Unit, all convicts have determinate sentences — meaning many won't get out until they are middle-aged.

Ward claims these inmates are "statistically similar" to those in regular youth prisons, but that's not true across the board. Granted, juveniles with "determinate" sentences differ in profile from those certified as adults mainly in their county of conviction. They, like those in TDCJ, are not getting out anytime soon. Most offenders in youth prisons, though, are serving "indeterminate" sentences meaning they can earn release through good behavior, working the programs, etc.. Juvie corrections focus more on rehabilitation because in most cases they'll reenter society relatively quickly. So these are not the same situations at all, statistically or otherwise. Bogus argument..

If you really want to do a valid comparison, it shouldn't be to juveniles in the adult system: Does Missouri have similar security problems to TJJD, for example? That state pioneered the path recommended by experts on Rick Perry's "blue ribbon panel" (which the Legislature mostly ignored) in order to reduce violence. They re-structured youth prison environments, shifting to smaller units to maximize chances for rehabilitation. Their program is widely recognized as a national model. (By contrast, nobody considers Texas' juvie prisons a model for anything.)

Yes, you can stick youth "in grimy, foul-smelling cellblocks," make them work in the fields, and they'll likely pose fewer security risks than those engaged in school and rehabilitation activities, at least in the near term. But what about the "security risk" of sending un-rehabilitated youth back into society? Most youth in TJJD aren't going to be in prison for years like those Ward describes at Clemens: They're moving back (maybe into your neighborhood) much sooner than later.

Last year, Michele Deitch at UT"s LBJ School closely examined the issue of Texas youth housed in adult prisons in a report titled "Juveniles in the adult criminal justice system in Texas," (pdf). That analysis takes on new import as state leaders seek to model juvie corrections on the adult system, but the study cast cold water on the idea:

Housing juveniles in adult prisons and jails compromises both public safety and the personal safety of the youth. A Task Force of the Centers for Disease Control, reviewing all available scientific research, concluded that the transfer of youth to the adult system not only has no deterrent value but typically increases rather than decreases their rates of violence and recidivism. One nationally-reported study found that transferred juveniles who served at least a year in prison had a 100% greater risk of violent recidivism.

Moreover, juveniles housed in adult prisons and jails face vastly higher risks of suicide, sexual assault, physical assault, and mental illness. ...

The CDC conclusion was consistent with findings of prior researchers, who determined that “juveniles prosecuted as adults reoffend more quickly and at rates equal to or higher than comparable youths retained in the juvenile system.” The evidence supporting this finding was so clear that the CDC Task Force took the highly unusual step of recommending that legislators repeal laws and policies that facilitate the transfer of youth from the juvenile to the adult system. The CDC group specifically highlighted safety concerns about the placement of juveniles under the age of 18 in adult prisons and jails.

Deitch's report detailed some of the differences between TDCJ's Youthful Offender Program and TJJD (then TYC):

While youth in the prison system’s Youthful Offender Program have access to some therapeutic programming, the curriculum has been severely compressed over the last few years. Vocational training and recreational opportunities are inadequate, according to TDCJ’s internal reports. Only 38% of juveniles in TDCJ are enrolled in educational classes, compared to 96% of juveniles in TYC. And there are so few females in the YOP that opportunities for this population are especially lacking.

TDCJ has clearly made an effort to offer special protections for this juvenile population, but any services provided are at best an overlay to the agency’s primary security mission. Juvenile facilities, in contrast, offer specialized and intensive therapeutic programming with impressive results, an education-focused curriculum, and a staff trained to work exclusively with this population of juvenile offenders.

The report also noted the remarkable and disturbing statistic that juveniles housed in adult facilities are "36 times more likely to commit suicide than their counterparts in juvenile facilities." That alone should provide cause for concern. Further, "Juveniles who are housed in TDCJ’s Youthful Offender Program receive minimal specialized programming, especially compared to those in TYC. Also, the majority of these youth are not in school."

How frustrating! We've already been down this path where officials from the adult prison system came in to try to reform then-TYC's approach based on an adult security model. It failed miserably, generated expensive litigation that forced roll back of its "reforms," and set back progress at the agency for years. But no matter ... here we go again. If it's true that history repeats itself, the first time as tragedy, the second time as farce, then it appears to Grits we're now entering the "farce" stage full-on, repeating failed approaches from just four years ago because the pols all want to appear tuff on crime but refuse to either accept expert advice or spend the money to do the job right.

Winston Churchill once said of Americans that we can always be counted on to do the right thing after we've tried everything else. In Texas, apparently we have to try everything else twice.

Incompetent Waco defendants in legal limbo

The Waco Tribune-Herald has a depressing report today ("Mentally disabled men in legal limbo," behind paywall) on a pair of competency restoration cases gone awry, where District Attorney Abel Reyna appears prepared to keep charges pending indefinitely - racking up significant county expenses for periodic evaluations - out of some misconceived hubris:

Two mentally disabled men who reportedly committed minor felony offenses remain on a legal merry-go-round because the McLennan

County District Attorney’s office will not dismiss the charges and a doctor has deemed that they never will be competent to stand trial.

A third mentally disabled man had been caught up in the judicial system with the other two until he died of cancer in April.

The district attorney’s office dismissed the felony burglary of a habitation case against him two days before he died, but only after the man’s attorney convinced prosecutors that his illness rapidly would overtake him.

The direct costs are racking up while the men wait for months on end in legal limbo:

While the criminal cases are pending, the men and their families or caregivers are required to come to court every 120 days for a status hearing. The law says the men must be re-examined by a mental health professional paid for by the countyevery 120 days to judge their competency and their lawyers are paid by the county for each court appearance.

A psychiatrist is paid $600 for each examination and the lawyers are paid about $150 for each court appearance.

The three men have been examined three times each and been in court three times each, costing taxpayers about $6,750 in fees so far. And that does not include the cost for the brief stints they spent in the McLennan County Jail.

One of the men is retarded with an IQ of 55 who broke into a doughnut shop ... wait for it ... because he wanted a doughnut. Even the doughnut shop owner doesn't want him prosecuted, but the DA won't dismiss charges.

Said the doughnut thief's attorney, "“The system is not accounting for people who have this kind of impairment,” [attorney Michelle] Tuegel said. “These people do not need to be committed or taken out of the placements they have. I realize if they have violent tendencies, that is one thing. But this guy has done great in his placement [a group home in Temple] for over a year now and he has never shown any signs of violent behavior.”

The article closes with a lament from an observer uninvolved with the case that, in instances like this, the criminal justice system has become a if not the primary point of entry for access to mental health services.

Dr. Lee Carter, a Waco psychologist who is appointed by the court to make competency determinations but has not been involved with these men, said the cases illustrate flaws in the mental health system, which have worsened in recent years because of state budget cuts to such services.

“Frankly, I don’t know the answer to this situation,” Carter said. “This is a perfect example of how the legal system has in too many ways become a mental health provider for the community.

“You get a certain number of people who are mentally retarded or certainly mentally ill who commit offenses, if not minor offenses, who keep coming through the legal system. I think the fact that these people keep coming through the courts highlights for the public at large that we are not doing a good job of caring for those in our midst who have special needs.”

Grits agrees with that sentiment, but that doesn't let Abel Reyna off the hook. Prosecutors are given discretion in such cases exactly to allow them to resolve intractable situations like this one. His failure to exercise it, not to mention his disdain for the rights of the accused, is on him.

In the big picture, though counties can't solve the problem by themselves. Last session, the Texas Legislature declared that defendants accused of misdemeanors couldn't be detained pretrial pending competency restoration for longer than the maximum length of their sentence. At a minimum, that same stricture should be extended to state jail felonies. But there needs to be more thought to how competency restoration is handled in more serious cases, including violent felonies, where decades may pass without competency being restored.

Until lately, competency restoration has been a legal and policy backwater that few people were even fully aware of outside of a few legal and medical specialists. However, a recent court ruling and competition over scarce resources at Texas state mental hospitals have pushed the issue to the fore. Time now for state policy makers to afford the subject much greater focus and resources during the 83rd Legislature. The problem only grows the longer they ignore it.

Implementing eyewitness ID legislation

Scott Ehlers, formerly one of state Sen. Rodney Ellis' staffers who is now employed at the Harris County Public Defenders office, authored an item in The Defender, the Texas defense bar's magazine, analyzing the state's new eyewitness ID legislation, the status of its implementation, and its potential legal import from the perspective of defense counsel. One of the more detailed, user-friendly summaries for practitioners I've seen.

Juvie sex-assault sentence overturned based on recantation, junk science

Slowly but surely, in leaps and starts (punctuated by inexplicable pauses and disappointing regressions), junk science long accepted in Texas courts is beginning to be more carefully vetted, at least in fringe fields where the number of cases affected is relatively small. In the latest example, Chuck Lindell at the Austin Statesman ("Central Texas man freed after conviction overturned on bad science," June 2) reported on Michael Arena's homecoming yesterday after he was released and his sentence overturned in response to a recantation by his accuser and the use of junk science at his trial. Since he was sixteen when convicted, Arena was sentenced as a juvenile and transferred to TDCJ where the 29-year old remained until yesterday:

Michael Arena, almost 13 years into a 20-year prison sentence for molesting a young cousin who later said the incident never happened, was released from prison Friday evening.

The Texas Supreme Court threw out Arena's sentence last month, ruling that a prosecution witness provided damaging false testimony during his 1999 trial — labeling Arena a pedophile based on a misused psychological test with a 35 percent error rate.

Friday morning, state District Judge Gordon Adams ordered prison officials to release Arena "forthwith pending a new (sentencing) hearing" in Bell County.

At 5:25 p.m., Arena — a mesh bag stuffed with belongings in each hand — walked out of his Dilley-area prison and into a prolonged embrace with his father, Robert Arena, freshly arrived after a giddy 220-mile drive from his Harker Heights home.

Arena has been freed, but not necessarily declared innocent:

Stephanie Arena, the cousin who accused Arena of molesting her as a 7-year-old, is prepared to testify in Arena's favor and has submitted sworn affidavits saying she lied about being sexually assaulted at the urging of her mother, who was embroiled in a bitter custody battle.

In addition, prosecutors cannot present testimony from psychologist Fred Willoughby, who in 1999 classified Arena as a pedophile based on a test that required the teen to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo.

While testifying at Arena's trial, Willoughby overstated the test's 65 percent accuracy rate and improperly testified that a Brigham Young University study certified its accuracy. Instead, the study raised serious questions about the test, saying its ability to identify pedophiles was no better than chance.

The Supreme Court's May 18 ruling, however, rejected Arena's request to be declared innocent of aggravated sexual assault.

The Supreme Court said it could not credit Stephanie Arena's version of events because a Bell County judge determined that her recantation lacked credibility, finding that it was apparently the result of pressure by Michael Arena's family. The Supreme Court typically defers to lower courts on such judgments.

That outcome muted Friday's celebration of Arena's freedom.

"Unfortunately, despite mountains of evidence that the charges against him were not true, the court refused to find him actually innocent," defense lawyer Clint Broden said. "We are happy that Michael has won his freedom but sad that he has been deprived of 13 years of his life and that the truth has been suppressed."

What's important here from Grits' perspective is the court overturning the conviction in part because of the invalidity of the (supposedly) scientific assessment. How often has the same "Abel Assessment" been used in other cases and have they been vetted to ensure there was other, sufficient supporting evidence to justify the charges? Since these assessment functions aren't performed at accredited crime labs, they don't fall under the jurisdiction of the Forensic Science Commission, but there needs to be that sort of big-picture review that the FSC commissioned for arson cases regarding the science behind the Abel Assessment and whether it's improperly influenced the outcomes of other cases.

See prior, related Grits posts:

• New sentencing hearing ordered based on junk sex-offender science
• 'Inmate challenges pedophilia test as junk science.'

Judge recommends against habeas relief for Hannah Overton: Governor should pardon her

The district judge in Hannah Overton's case recommended against her habeas corpus petition, declaring the faulty scientific evidence in her case was contradicted at trial and wasn't new information that should change the verdict. See coverage from:

• Pam Colloff, Texas Monthly: Overton judge finds no new evidence of innocence
• John MacCormack, SA Express-News: Judge rejects claims in salt poisoning case
• Michelle Villareal, Corpus Christi Caller-Times: State district judge offers Hannah Overton recommendation, sends case to appeals court

Colloff notes that, to say the least, the judge in the case has strong opinions about parenting.

Grits argued before that Governor Perry should simply pardon Overton if the habeas writ doesn't go her way, and given this opinion I think that more strongly than ever. What the judge has said is he thinks Overton received a fair trial. We'll find out down the line if the Court of Criminal Appeals agrees. Even if she did, though, her actual-innocence claims are strong enough that the Board of Pardons and Paroles and Gov. Perry should at least commute her sentence. An honest assessment of the scientific testimony in her case cannot justify imprisonment unto death.

'Life on the List': Juvenile sex offenders may be punished forever through registration

Check out an extensive cover story by Emily DePrang at the Texas Observer ("Life on the List," May 31) exploring the pitfalls of putting juveniles on the sex offender registry through the lens of a man convicted of a sex offense with his sister as a 12-year old (she was eight) who, barring some change, will be on the registry for life. (The family did not want to press charges; the state did so over their objection.) A remarkable tidbit: "During months of research for this story, I actively tried to find someone to make a case for how the sex offender registry is working and why juveniles should be on it. As researcher Nicole Pittman had predicted, I could not find that person." A few other notable details:

One little-realized fact of sexual abuse is that more than a third of sex offenses against children are committed by other children. In 2009, the U.S. Department of Justice published a comprehensive bulletin about child-on-child sex abuse that analyzed multiple studies. It found that about half of juvenile sex offenders are between 15 and 17, the age people might expect offenders to be. But many are much younger. More than a third are between 12 and 14, like Josh was, and one in 20 is younger than 9.

These children are also not generally being convicted of the crimes people associate with sex offenders, like rape. Almost two-thirds of offenses were for fondling or non-forcible offenses like sharing pornography. But they all are sex offenders under the law.

Among juvenile sex offenders, "3 percent of victims were strangers to their assailants, while a quarter were family members." Further:

The conventional wisdom about sex offenders is that if they do it once, they’ll do it again. That’s the whole logic behind having a registry. But statistically, sex offenders are less likely to re-offend than other kinds of criminals, and juvenile recidivism is even lower. A 2006 study of 300 registered sex offenders in Texas who were juveniles at the time of their first offense found that just 4.3 percent were arrested as adults for another sex crime.

Even victim rights groups didn't support the registry for juveniles in its current form:

Torie Camp is deputy director for the victims’ rights group Texas Association Against Sexual Assault. She’s one of many who say the size of the registry makes it less useful and less fair. “The registry currently treats every single sex offender like they were all the same type of offender,” she said, “and with 70,000 people on that list, they’re not. There are some very dangerous people on that list and there are some people who aren’t very dangerous and don’t need to be listed. I would say that includes juveniles. From the research we’ve seen, juvenile sex offenders are the best target group for rehabilitation, and they do not necessarily pose a threat to the same extent as adult sex offenders. I would even argue that there are many adult sex offenders that, having them on the list just scares people in a community. It doesn’t make them any safer.”

Camp added another common criticism, which is that the registry creates a false sense of security. “Our research shows that 18 percent of sexual assault survivors actually make a report to law enforcement,” she said. Far fewer than that result in a conviction, so Camp said while the Texas list is enormous, most people who have committed a sexual assault aren’t on it. “Everybody has sex offenders living in their neighborhood,” she said. “Just some of them are on the registry and some are not.”

But instead of refining the list, sex offender laws keep expanding it

These excerpts are just a taste, see the entire story for much more detail.