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Observers of Texas’ inarguably messed-up criminal justice system will lately have noticed a change in the state’s tune. Decades of tuff-on-crime policies turned out to be super-expensive to implement, so leaders across the state have started amending those policies and prioritizing whom they incarcerate, a posture shift called “right on crime.” As a result, after 10 years of Texas’ prison population growing by an average almost half a percent annually, that number actually dropped 0.7 percent between 2010 and 2011.

Great, right? Great for taxpayers who aren’t paying to house and feed as many of their felonious brethren (especially nonviolent offenders better off in rehab); great for cops, who can dedicate their limited resources to the most serious crimes; and great for penny-ante dope fiends with a taillight out.

A solid example of “right on crime” is—er, was—Houston’s “trace case” policy. When Republican Pat Lykos was elected Harris County district attorney in 2010, she changed the long-standing policy of prosecuting possession of “trace” amounts of drugs as a felony. A trace amount is defined as less than of 1/100th a gram; in most cases, it refers to the burned residue inside a used crack pipe. (If your ears are pricking up about a policy that would, in practice, usually apply only to one kind of drug user, you’re not alone. More on that in a minute.) Lykos made possession of trace amounts of drugs a misdemeanor.

That single change cut the number of citizens arrested in Harris County for felony drug possession by half. It freed up prison space, took paraphernalia cases off the perennially overbooked Houston Police Department Crime Lab, and saved money—pretty important, as Harris County spends about 70 percent of its total budget on criminal justice.

It also aligned Houston with other large urban counties in Texas and with what’s probably constitutional: One one-hundredth of a gram is too small a sample to analyze twice. Testing the evidence destroys it, so the defense can’t do its own analysis.

That’s why the Texas Criminal Justice Coalition and many others were so dismayed to see the new Harris County DA Mike Anderson reinstate felony prosecution for trace cases. Anderson’s promise to do so was one reason he trounced Lykos in the Republican primary last year; Houston police openly hated Lykos’s reform.

“These crackheads are the people who are breaking into motor vehicles to steal your laptop off the front seat, to grab the purse that’s visible, all those things they can sell for $25 to go buy another crack rock,” said Ray Hunt, president of the Houston Police Officers’ Union, to the Houston Chronicle.

But as a new study by Texas Criminal Justice Coalition points out, both property and violent crime in Houston continued their precipitous drops through the two years of Lykos’s policy.

Besides being a resource hog without a demonstrable effect on crime, prosecuting trace cases as felonies perpetuates a historical injustice of unequal enforcement for illegal drugs. Will cops start pulling over Jaguars and looking for straws caked with what might not be 1/100 of a gram of Splenda?

The Houston Police Department’s own annual report on racial profiling says no. Although only 19 percent of Houstonians are black, more than half of all HPD “consent searches” in 2012—searches without probable cause—were of black drivers. And while research consistently shows that whites and blacks use illegal drugs at similar rates, blacks make up almost half of arrestees for felony drug possession in Houston.

Hey–you can’t spell “trace” without “race.”

Seal of the United States Court of Appeal for the Fifth Circuit.
Seal of the United States Court of Appeal for the Fifth Circuit.

The Associated Press recently described the U.S. 5th Circuit Court of Appeals, which encompasses Texas, Louisiana and Mississippi, as a “corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates.”


But in the next four years, President Obama may have the chance to moderate this most conservative of appeals courts.

Right now, the 5th Circuit has 10 judges appointed by Republican presidents, five by Democratic presidents, and two vacancies. But by 2016, seven of the Republican-nominated judges will have turned 65, making them eligible for “senior status,” a voluntary semi-retirement that would allow Obama to appoint their successors.

This doesn’t guarantee a huge ideological swing for the 5th Circuit. Judges aren’t required to assume senior status—five judges are currently eligible but continue to serve—and some Republican-appointed judges might choose to wait out Obama’s second term before retiring.

That said, it is mathematically possible for the 5th Circuit Court of Appeals to go from two-to-one Republican-appointed judges to four-to-one Democrat-appointed by 2016.

A slim blue majority is more likely. Assuming the president can get his nominees confirmed, Obama needs just two Republican-appointed judges to accept senior status to tip the court’s makeup.

But if any of those seven eligible Republican-appointed judges hang up their robes, the 5th Circuit stands to lose a lot of pizzazz. Here are a few of the eligible judges’ more colorful decisions:

The Honorable Jerry E. Smith (eligible for seniority in 2011) wrote the majority opinion in 1996’s Hopwood v. Texas, ending the University of Texas’ use of affirmative action. He also wrote the panel opinion overturning the EPA’s ban on asbestos in 1991’s Corrosion Proof Fittings v. EPA, which required the EPA, from then on, to do a cost-benefit analysis before banning a toxic substance. (Yeah, why does everyone always talk about the downsides of asbestos?)

The Honorable Edith Brown Clement (eligible this year) joined two other judges in affirming dismissal of a free-speech lawsuit by a high school basketball cheerleader who was kicked off the team for refusing to chant the name of her alleged rapist. But 5th Circuit judges went one better than the lower court. They declared the lawsuit frivolous and ordered the girl to pay her high school $45,000 in legal fees.

George W. Bush appointed the Hon. Leslie Southwick (eligible in 2015) over strenuous objection from gay rights and minority groups who were alarmed by Southwick’s record as a judge on the Mississippi Court of Appeals. In 2000, Southwick joined the majority in reinstating a state social worker who’d been fired for calling a black coworker a “good ole n***er,” a slur characterized by one witness as only “somewhat derogatory” because the social worker was “in effect calling the individual a ‘teacher’s pet.’” In 2001, Southwick joined the court in upholding an award of sole custody to a father because the mother, who had been primary caregiver, was a lesbian.

But by far the greatest loss of 5th Circuit flavor would be if former Chief Judge Edith Jones (eligible in 2014) takes senior status. Once referred to as the “horsewoman of the right-wing apocalypse,” Judge Jones regularly uses irony quotes around the words “rights” and “choice.” She’s a strenuous foe of abortion rights, having upheld Mississippi’s requirement that a minor get permission from both parents to get an abortion, even in a home with documented abuse. And last February, Jones vacated a lower judge’s injunction stopping enforcement of Texas’ mandatory sonogram law, adding that without the Clockwork Orange-like procedure, a woman isn’t “fully informed.”
Helena Brown

Most weeks, Houston City Council member Helena Brown votes against a bunch of stuff at the council meeting, then releases a little video listing what she voted against, sometimes with brief explanations. They are usually boring. But the video Brown’s office sent out today is awesome.

The four-minute video takes place inside Mossy Nissan, a car dealership in Brown’s district. A cool, newsy graphic introduces “Student/Intern Reporter Claudia Miranda,” a petite woman standing before the hindquarters of a maroon SUV, the thumb of her non-microphone hand tucked nervously into her fist.

“Hi, I’m Claudia Miranda,” she says, “here with council member Helena Brown and David Hruska, General Manager of Mossy Nissan.”

She then hands the microphone to… Mr. Hruska.

“Hi, I’m David Hruska and we welcome you to Mossy Nissan,” he says, gently but eagerly, like a small-town pastor. He congratulates Brown on having recently been named one of Houston’s Fifty Most Influential Women just as what sounds like Christmas chimes begins playing in the background. But it’s actually the opening strains of the Phil Collins 1989 humanitarian smash hit, “Another Day in Paradise.”

Hruska invites you to participate in “one of the greatest family stories in town” and “be part of who we are” by buying a car from him.

The picture fades and then CM Brown appears for the first time, one minute and eight seconds into her own video, before a white coupe. She reports that of the 40 items on the City Council’s most recent agenda, she voted no to seven. “That’s 18 percent,” she says.

Then she fades out again… and reappears in front of the same car.

“First item’s number twelve, $7.1 million for so-called HIV-prevention activities,” she says cannily. “Number 14, $1.8 million for HIV surveillance activities—what are we doing as a city, uh, getting involved in surveilling medical situations or, uh, HIV, uh, type activities—what’s, what is all that about?”

And airline food—am I right?

Brown evaporates again and reappears in front of a different Nissan (weird that she didn’t point out the new fierce new front-end styling of the 2013 models) to highlight her votes for juvenile delinquency and against childcare. Then she screws her mouth to the side, disappears, and reappears inside a car on the dealership floor.

“Item number 17 is $3.5 million to assist 7,800 individuals who are homeless or at risk of becoming homeless. And, of course, this is always better handled by the private sector, and they do such a better job at addressing these homeless needs.”

Because the profit margin on housing the homeless is just incredible. It’s the fountain soda of social services.

But CM Brown doesn’t get really Churchillian until she explains how the city’s decision to maintain current energy rates will actually cost Houstonians more.

“What this ends up doing is passing on, uh, additional costs to the consumer, because, the, whatever costs the Centerpoint is incurring currently that cannot be covered, because the, the maintenance of current rates, uh, they’ll end up having to pay down the road, in addition to additional costs that they will have to incur in this dealing with this situation of, ah, debating, arguing, and defending, ah, their expenses having to be carried on in their, uh, updating their rates to the consumers.”

In other words (or, in words), the city should do what businesses want because the city’s just going to end up paying for the business’s legal bills after they win.

“So, in the long run,” CM Brown concludes, “I don’t think this is going to benefit the citizens. But it did pass, so the rates will be maintained until further notice.”

Ah, influence.

Get the full scoop on Helena Brown’s bizarre first year in office by reading the Observer’s December feature, “Helena Handbasket.”

An ad sponsored by Greg Abbot

As the national debate over gun control rages, Texas’s leaders have identified that against which we must all be most vigilant:

An excess of… whimsy.

Yesterday, New York state passed the nation’s most stringent gun-control law. The next blessed day, Texas’s Attorney General, Greg Abbott, had an online ad appearing on New York websites telling law-abiding, gun-totin’ Yankees to come enjoy the “lower taxes and greater opportunity” enjoyed by the Lone Star State.

“We’ll fight like hell to protect your rights,” it actually says, not as a joke. “You’ll also get to keep more of what you earn and use some of that extra money to buy more ammo.”

Eric Bearse, a spokesperson for Abbott, told the Daily Beast that they placed the ad because in Texas, the Constitution is held “sacred” and protects Americans from “whimsical and knee-jerk reactions by political leaders.”

In related news, several writers for late-night talk shows simultaneously punched the air with gratitude. (Not really, but probably.)

Conservatives and public employee unions rarely unite over an issue, but desperation makes strange bedfellows. At the end of 2012, a surprising coalition emerged to support closing some of Texas’ state prisons in the new year.

The union that represents prison guards, the American Federation of State, County and Municipal Employees (AFSCME), has long advocated better pay and conditions to help reduce turnover and ease guard shortages that in some places approach 50 percent. Texas’ prison population has dropped—state Sen. John Whitmire, a Houston Democrat, says the state is now sitting on 10,000 empty beds—and union leaders want to see prisoners consolidated, prisons fully staffed, and the savings from closed units put toward better training and compensation for guards. Fully staffed facilities are less stressful and less dangerous workplaces, besides being more secure. This could help decrease the 20 to 40 percent turnover rate among guards, which the union says wastes millions of dollars in training costs.

Guard shortages are a chronic problem that the Texas Department of Criminal Justice says is worsened by an oil and gas boom that offers wages the Texas prison system can’t top. Union leaders also point out that since the average facility offers a starting salary of $28,000 and no air conditioning, most jobs are more appealing than those in corrections.

Rural units, many built in the early 1990s in the hope of boosting small-town economies, are the hardest to keep staffed. The Connally unit in South Texas closed eight of its dorms last summer because of guard shortages, and two Panhandle penitentiaries relocated some prisoners to other units in December for the same reason, though a TDCJ spokesperson said the move is temporary.

Fiscal conservatives support unit closures because they’re appalled at the expense and recidivism rate of state jails. Originally intended to be a low-cost, rehabilitative alternative to prison for minor offenders, state jails cost almost as much as state prisons and have a far worse recidivism rate. A scathing report from the Texas Public Policy Foundation in November declared, “Unfortunately, state jails are universally failing in their objective,” and called them a “bad deal,” advocating diversion or probation for most jail felons.

Privately run facilities—which were supposed to save money—often exacerbate the expense by charging more per prisoner if the population drops below a certain threshold, preventing savings from policy changes like alternative sentencing.

In December, Sen. Whitmire, chairman of the Senate Criminal Justice Committee, suggested two private units for closure, both run by Corrections Corporation of America. One is Dawson State Jail in downtown Dallas, which an October audit cited for systemic failures in health services, and which has been blamed for horrible inmate deaths from illness and negligence. The other is the Mineral Wells Pre-Parole Transfer Facility west of Fort Worth, which has struggled with contraband, rioting and violence.

“I think it would be pretty convincing to show we’re wasting dollars” on Dawson and Mineral Wells, Whitmire told the Texas Tribune.

Lance Lowry, president of AFSCME Local 3807, put it more strongly in a recent letter to criminal justice blogger Scott Henson.

Explaining his support for closing the Dawson and Mineral Wells facilities, Lowry wrote, “These prisons are extremely dangerous and are only being kept open to satisfy the greed of the private prison industry.”

The renewed debate over gun control has lately settled into two broad camps: those who think more guns in the right hands would reduce violence, and those who think fewer guns overall would reduce violence.

Texas politicians, predictably, have come out in favor of more guns, particularly in the hands of schoolteachers: Gov. Rick Perry, state Rep.-elect Jason Villalba of Dallas, Texas Land Commissioner Jerry Patterson, and suburban Houston’s own state Rep. Debbie Riddle all support arming teachers. This morning, NRA executive Wayne LaPierre held a press conference calling for armed guards in schools, neglecting to mention that Columbine High School had an armed guard and that Fort Hood had a great many armed personnel present. (And, as an apparent Christmas gift to the Internet, LaPierre blamed violence on hurricanes and video games like Mortal Kombat, which features ninjas and fireballs but no guns.)

But the more-guns argument is predicated on the belief that non-criminal citizens with guns can be relied upon to secure their weapons and use them safely. Otherwise, why would you introduce a gun for every 20 or 30 kids in a school, right?

Looking back on the Houston area’s year in firearms casts doubt on that assumption. A few illustrative selections from Dateline Houston’s files:

March 22: A man in Jacinto City killed himself accidentally when one of the shots he fired in the air hit him in the neck.

June 13: A 17-year-old boy in Alamo died when a bullet he fired at a butane tank ricocheted and hit his head.

June 17: A 24-year-old woman in south Houston was killed when her brother accidentally dropped the gun he was carrying.

July 31: A 12-year-old boy in Waller County accidentally shot and killed his 11-year-old brother with a 12-gauge shotgun after finding it and another shotgun in their parents’ closet. The parents thought the closet was locked.

November 13: A young man in southeast Houston died after he and a neighbor were comparing their guns and one gun accidentally discharged.

Dec 12: A 4-year-old boy in northeast Houston shot himself after climbing on top of his parents’ tall furniture chest and finding a gun kept there for home security. Both parents were home and thought the child was in bed.

Then there are the situations that might not have ended in death if guns hadn’t been present.

Yesterday, a 20-year-old man allegedly shot and killed a 30-year-old woman during a road-rage confrontation in far southwest Harris County.

And on Dec 11, a 17-year-old died after being shot by his neighbor during an argument over sneakers.

One could go on.

As our politicians lather up their arguments about how guns make us safer, Dateline Houston hopes they’ll remember how things work in real life, not just in the black-hat-white-hat world they imagine.

There’s always womb for Rick Perry.

On Tuesday, he alighted at The Source For Women, a crisis pregnancy center in Houston whose opening ribbon he cut in September, to announce his support for prospective legislation called Bean the “Preborn Pain Act,” aka a fetal pain bill. (The name comes from the belief, popular among opponents of abortion access, that 20-week-old fetuses can feel pain. A 2005 research review by the Journal of the American Medical Association says that isn’t true.) The bill would ban abortions after 20 weeks even for victims of rape or incest, although, magnanimously, would allow the procedure save a woman’s life.

But only about one half of one percent of abortions in Texas take place after 20 weeks. And according to NARAL Pro-Choice Texas, most of those few are medical emergencies, so the new rule wouldn’t apply to them.

That doesn’t mean the “fetal pain” bill won’t make abortions harder to get.

Part of the proposed bill, lightly touched on in Perry’s presentation, is a requirement that abortion clinics conform to “surgical operating” room standards. Because the bill itself is preborn, it’s hard to say what exactly that will mean, but Heather Busby, Executive Director of NARAL Pro-Choice TX, has a guess.

“Back in 2004,” Busby says, “the Legislature passed a bill that required any abortion after 16 weeks to be performed in an ambulatory surgical center (ASC). It sounds like what they’re referring to is making all clinics ASCs.”

An ASC has structural requirements like hallways wide enough for stretchers. “There was no medical reason for those requirements,” Busby said. “It was just a way to make clinics have to rebuild or remodel or move.“

In 2004, no Texas clinics met those standards. Now the only ASCs are in Austin, Houston, San Antonio and Dallas, and their costs of service are up to three times what they were before remodeling. “The effect is felt directly by the women,” Busby says.

If the “Preborn Pain Act” passes and all abortion clinics must be ASCs, “clinics are going to close and abortion costs will be higher.”

Sounds good to Perry. His goal, he told The Source for Women, “is to make abortion, at any stage, a thing of the past.”

Screen grab of Joshua Gravens' Texas Department of Public Safety record.
Screen grab of Joshua Gravens' Texas Department of Public Safety record.

The Texas Observer’s June cover story, “Life On the List,” looked at what happens when children are placed on Texas’ public sex offender registry. It centered on Josh Gravens, who at age 12 had sexual contact with his sister, was handed over to the Texas Youth Commission for more than three years, and has been listed in the public registry ever since.

Before agreeing to be interviewed for by the Observer, Gravens had never discussed his ordeal with anyone who didn’t strictly need to know. Gravens had never been an activist. He had struggled privately, moved from place to place, job to job. Each time he started to build a life, he’d be fired, threatened, or evicted after a couple of years when something called attention to his presence on the registry.

As of November 15, though, the 25-year-old married father of four is, for the first time since he was 13, not on the list.

Years ago, a clerk told Gravens that he couldn’t petition for removal because the judge who sentenced him had died. It turns out that wasn’t true. The Observer found the judge during reporting and let Gravens know how to contact him. After “Life On the List” came out, Gravens sent the judge a copy of the story, along with a request for a copy of his court records (he had been told they were sealed) so that he could petition for the removal of one erroneously listed charge.

Shocked and moved by the effect the registry had had on Josh’s life, the judge instead considered Gravens’ letter a petition to be listed privately and arranged a court date for him.

As Gravens wrote in a letter to me:

“On November 1, I appeared before the original judge in my juvenile case. I sat in the witness stand and made a case for how the public registry has time and again brought an end to my successes. It was a very informal setting. The judge did not wear his robes, the district attorney was present, and they both asked me questions about my advocacy, employment, and most of all family… As the hearing proceeded, both the judge and the DA had their [copy of state] statutes out to make sure of exactly how the law worked. The removal of juveniles from the public registry had been a law on the books for ten years, but the judge in this case (who’s served 20+ years) and the district attorney, neither had ever used this law. This speaks volumes to how rare it is that someone is removed from the registry. Officials are very good at placing people on the sex offender registry, but when it comes to removal, they have no idea how.”

Gravens’ records will still be available to law enforcement officers, but not to the public.

Gravens has also applied for a George Soros Justice Fellowship to educate policymakers about the effects of listing children on the public sex offender registry. This very afternoon, he learned he is a finalist for the fellowship. He’ll be flown to New York for an interview next month. “I’m so excited,” he said. “I’ve never been there.”

He added, “This is a direct result of the article.”

Along with the joyful news, Gravens sent the screen shot you see above.

Now, he begins life off the list.

The Houston Chronicle reported today that the U.S. Justice Department is investigating six relatively recent cases of shootings or alleged use of force violations against unarmed citizens by the Houston Police Department.

HPD Chief Charles McClelland asked the Justice Department to investigate three of the cases, and federal prosecutors requested investigation of three others, citing widespread outrage and publicity.

Dateline Houston readers will, I’m sorry to say, be familiar with most of the cases (click the hyperlinks for our previous coverage):

1. Chad Holley, an unarmed teenage burglary suspect beaten by a nearly dozen police officers

2. Annika Lewis, the wife of a man being beaten by police in his yard after a minor traffic infraction. Annika, who is less than five feet tall, was allegedly tackled and punched after she filmed police beating her unarmed husband. She says they also took the memory card from her phone

3. Rufino Lara, who was shot unarmed after allegedly refusing to show his hands, though witnesses say he had his hands up

4. Brian Claunch, a double amputee who was shot unarmed after police thought his ballpoint pen was a weapon

5. Anthony Childress, who says he was stopped by police and beaten while riding his bike, losing six teeth and requiring 56 stitches

6. A minor in handcuffs, unnamed, who was punched by an officer, an assault caught on new cameras.

Dateline Houston has also reported on several other incidents.

In a statement, the ACLU of Texas Legal & Policy Director Rebecca Robertson said, “Good cops don’t fear accountability; they welcome it.”

Tonight, the Texas Observer’s own Melissa del Bosque will moderate a free public forum in Houston called “The True Cost of Environmental Justice.”

At issue is Texas’ longstanding pro-business approach to regulation—which is to say, not having it—and whether the jobs created by oil and chemical refineries are worth the local health and environmental costs.

While Houston has weathered the recession better than practically anyplace, a major reason is that Harris and its surrounding counties are home to more than 260 oil refineries, chemical plants, and other large industrial facilities, according to a recent count by the Houston Chronicle. Houstonians have a special interest in the balance between a strong economy and a safe, healthy home.

Ms. del Bosque and Observer multimedia editor Jen Reel know all about this. They produced our November cover story, “Kochworld,” which documented the pollution plaguing communities abutting Koch Industries-owned refineries in Corpus Christi. After spending months interviewing sick residents, Reel and del Bosque turned out a feature so good that the Koch bros put out their Benjamin-wrapped cigars long enough to fire off a rebuttal on their Myspace page corporate website

State Sen. Rodney Ellis will join del Bosque for tonight’s discussion, along with Matthew Tejada of Air Alliance Houston, Bryan Parras of T. E. J. A. S., and Dr. Jay Olaguer of the Houston Advanced Research Center. Jen Reel will provide a video introduction.

The place is Rice University, the McMurtry Auditorium in Duncan Hall. The time is 7 p.m. I’ll see you there.

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