Indigent defense short-shrifted in Byrne/JAG grants, says Constitution Project

Could/should Texas be spending more federal grant dollars to support indigent defense? And should the Governor's Criminal Justice Division continue to forbid using Texas' deepest well of federal criminal-justice grant funds for that purpose?

A press release Grits received via email from the Constitution Project argues that a greater proportion of federal grant money aimed at criminal justice should go toward providing lawyers for the poor: 

WASHINGTON, D.C. -- Almost none the money the federal government provides to state and local governments for justice system improvements goes to helping to defend poor people, a new study shows. The report bears out claims that supporters of indigent defense have made for years that there is an enormous disparity between governmental financial support for prosecutors and defenders.

According to a Government Accountability Office (GAO) report released yesterday, almost half the money block granted to the states under the Byrne Justice Assistance Grant Program grants goes to fund law enforcement and prosecution activities, with less than one percent being used for public defenders or other private lawyers appointed to assist those who cannot afford legal representation on their own.

"Despite repeated calls from the legal community for improved funding for indigent defense, and even though Attorney General Holder himself has declared a 'crisis' in the right to counsel for the poor, this study shows that state and local governments continue to give justice for the needy short shrift when they divide up the federal dollars they receive," said Virginia Sloan, president of The Constitution Project (TCP), a bipartisan legal watchdog group.

The GAO report says that the Department of Justice (DOJ) distributed more than $500 million to state and local government under the Byrne JAG program in five of the six fiscal years between 2005 and 2010. Less than one-tenth of one percent of the money sent to local governments, and only seven-tenths of one percent of the money allocated to the states, was spent on indigent legal defense, the report shows. In contrast, 54% of the funds DOJ sent to localities, and 38% of the funds sent to states, were spent on law enforcement and prosecution activities.

The report indicates that among the reasons that indigent defenders do not receive more funding is that, most of the time, they are not part of the decision-making process that disperses the funds, and many are not even aware they are eligible to apply for them. Nearly two-thirds of the public defender offices responding to a GAO survey said they did not know that they were eligible for federal funding, and 31% said they lacked the knowledge or the personnel to complete the application process.

In responding to the GAO report, the DOJ indicated it was taking steps to make public defenders more aware of their eligibility. ...

TCP released a comprehensive bipartisan report on problems in the indigent defense system, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, in 2009.

A copy of the GAO report is available online.

Regrettably, GAO's main recommendation is pretty weak:

GAO recommends that DOJ increase grantees’ awareness that funding can be allocated for indigent defense and collect data on such funding.

DOJ concurred with the recommendations.

The feds could and should do more to balance the equation than just make grantees "aware." Whenever the feds specify that a proportion of grant money be spent on indigent defense, they do it. From GAO:

The Department of Justice (DOJ) administered 13 grant programs from fiscal years 2005 through 2010 that recipients could use to support indigent defense, 4 of which required recipients to use all or part of the funding for this purpose. DOJ also provides training to indigent defense providers, among other things.

From fiscal years 2005 through 2010, recipients of the 4 grants that required spending for indigent defense allocated or planned to use $13.3 million out of $21.2 million in current dollars for indigent defense.

However, among the 9 grants that did not require allocations or awards for indigent defense, two-thirds or more of state, local, and tribal respondents to GAO’s surveys reported that they did not use funds for this purpose, partly due to competing priorities.

Clearly grantees will spend money on indigent defense when the feds tell they they have to, but prioritize law enforcement and prosecution spending nearly exclusively when left to their own devices.

As it happens, Grits has quite a bit of history with Byrne grants in Texas, spending five years on a campaign to convince Texas to shift its federal block-grant spending away from Tulia-style drug task forces, including authoring two public policy reports on the subject (see here and here). Initially, after the drug-task forces were de-funded in 2006, roughly half the Byrne grant money began to fund the Governor's new border security projects while much of the rest went to fund things like drug courts, diversion programs and frequently law enforcement equipment. (Here's an example of Byrne/JAG grants from a recent quarter to give you an idea of how the money is spent in Texas today. See the full list (pdf) of the various grant funding streams administered by the Governor's Criminal Justice Division.)

As drug task forces began to shut down - either from scandal or from counties' fear of increased liability as their insurers demanded higher premiums in the wake of the Tulia and Hearne episodes - we actually sent out blank grant applications to counties when I was at ACLU of Texas suggesting they apply for money to use for other, more constructive things, particularly drug courts and diversion programming. So I understand and agree with the strategy of making applicants aware of their eligibility, but that's not enough in and of itself. If Congress and/or DOJ want Byrne/JAG money spent on indigent defense they may need to require some minimum proportion go to that purpose.

Presently most indigent defense grants in Texas are funneled through the Texas Indigent Defense Commission grant programs, which are financed (at lower levels than Byrne grants) largely through the federal Office of Justice Programs. If Byrne grant money could also be used to launch indigent defense programs, I bet a lot of Texas counties would apply for that purpose.

Unfortunately, on the website of the Texas Governor's Criminal Justice Division is a "Guide to Grants" (pdf) describing the various funding streams doled out by that office, which specifically excludes "legal services for adult offenders" from allowable grant expenditures. Here instead are the areas the Justice Assistance Grants in Texas are designated to fund:

• Border Initiatives
• Court Programs (except Drug Courts)
• Data/Information Sharing Systems
• Drug Court - Adult
• Drug Court - Family
• Drug Court - Juvenile
• Equipment-Only Purchases
• Gangs – Adult
• Investigation
• Prosecution
• Substance Abuse
• Training
• Technology

Indigent defense is notably absent from the list. So even if DOJ increases the Governor's Criminal Justice Division "awareness that funding can be allocated for indigent defense," unless that restriction is changed it won't boost the proportion of Byrne/JAG grants going to pay for it in Texas. Larry Akey at the Constitution Project says that "it’s Texas policy" and not any federal restriction "that prevents them from using Byrne-JAG for indigent defense." He wrote in an email that:

Indigent defense has long been an approved use. Starting in 2010, the DOJ has stated explicitly in  application materials that indigent defense is an appropriate use.  For example, in 2012, the Byrne JAG state solicitation indicates:
 
“Another key priority area is ensuring that justice is truly done in the criminal justice system is support for indigent defense. BJA continues to encourage states and SAAs to use JAG funds to support the vital needs of the indigent defense community. Attorney General Holder has consistently stressed that the crisis in indigent defense reform is a serious concern which must be addressed if true justice is to be achieved in our nation.”

If that's accurate, it's Governor Rick Perry's Criminal Justice Division policies, not federal law or regulations, keeping counties from applying for Byrne/JAG money for indigent defense programs.

Grits contacted the Governor's Criminal Justice Division on Friday to ask why that rule is in place, but after an email query and leaving a message with a receptionist did not receive a return call by the end of the day. I also asked Jim Bethke from the Texas Indigent Defense Commission about the restriction. He said he knew nothing specifically about Byrne/JAG grants, but dashed off a quick note to say "CJD has been supportive of various initiatives we have brought to them over the years.  Travel funds for county officials to attend indigent defense travels, collaborations on veteran defender programs, and I’m certain there are other things too. And more importantly than the 'CJD' funds, the Governor has supported the growth of indigent defense appropriations for our agency."

Even if the Governor has been supportive of indigent defense funding from the state budget - and that's no small credit to him in these trying fiscal times - I bet there are more than a few county commissioners from both parties (at least those whose counties don't get Border Star money), who would like to see federal and state grants focused more on basic statewide needs like improving indigent defense and less on a handful of often thinly populated counties along the border.

For example, in one recent quarter, Webb County (Laredo) received roughly $242,000 for a drug court program plus $303,000 in JAG money under Operation Border Star. The same quarter, much smaller Starr and Maverick Counties received $279K and $282K, respectively, under Operation Border Star. By contrast, just as example, Lubbock County the same quarter received three grants for specialty courts totaling roughly $211,000. Jim Hogg County, by comparison, with a total population of less than 5,000 people, received $233,646 that quarter for a "Major Crimes Unit." A lot more people live in Lubbock County than Webb, much less Jim Hogg, for heaven's sake, but because border security has been prioritized over indigent defense, they receive less federal grant money. And that doesn't even speak to the enormous pots of state money from the general fund the Governor distributed along the border on top of this federal pork.

It's possible the timing is fortuitous to attack this disparity in the distribution of Byrne/JAG grants. These are block grants distributed at the discretion of the Governor. But the Governor has likely gotten all the political mileage he can out of his border security message (it didn't do him much good, for example, in the presidential primaries), especially now that economic malaise and the Obama Administration (or do I repeat myself?) have functionally combined to reduce the illegal immigration deluge Perry decried with such anguish in his 2006 and 2010 campaigns. Indigent defense is something virtually every county is struggling with, and this might be a good moment for the governor to pivot on this question, much as he did in 2006 to eliminate Byrne/JAG funding for drug task forces, a move which many saw as flying in the face of his "tough on crime" image.

Finally, on a seemingly tangential yet pivotal, related subject, none of that will matter for Texas counties which can't get 90% of their old case dispositions inputted into the state's data system by September 1. These are Byrne/JAG funds are precisely the grants the Governor's Criminal Justice Division said they would stop doling out to counties that didn't begin reporting case outcomes. So border counties, in particular, had better start getting their ducks in a row. Here are the rates of case disposition from border counties recorded with DPS according to data released when the Governor's office announced the new data-entry requirements:

Brewster: 57%
Cameron: 43
Culberson: 28
El Paso: 81
Hidalgo: 73
Hudspeth: 2
Jeff Davis: 25
Kinney: 54
Maverick: 30
Presidio: 20
Starr: 19
Terrell: 27
Val Verde: 69
Webb: 30
Zapata: 3

Source: DPS (pdf)

So some of these counties - not to mention more than a few others around the state - may become ineligible for Byrne/JAG money after September 1. If that happens, the Governor should push to remove the restriction on funding indigent defense with JAG funds and use freed up money to finance the same mission being promoted at the Indigent Defense Commission. The Governor has said many times that defending the border is the feds' job and he's spending mind-boggling sums there in Texas resources and manpower to do a job the feds won't do. Well they're doing it now. It's time to declare victory and repatriate those resources back to Texas' domestic needs, letting the rest of the state benefit more proportionally from the federal tax dollars they send to Washington. Indigent defense is something virtually every Texas county struggles with. Why not remove that requirement and focus some portion of Byrne/JAG grants on indigent defense projects, just as the GAO and the Constitution Project say other states have done?

Either way, the Governor's Criminal Justice Division should change its rules to eliminate the ban on JAG grants for "legal services for adult offenders." There are no shortage of worthy programs to finance, and the maximal emphasis on border grants, especially to the smallest counties, has gone on well beyond the point where increased utility justifies the cost.

Obama the Merciless

For reasons Grits couldn't begin to explain, President Barack Obama has among the stingiest records among presidents when it comes to pardons, commutations and clemency decisions in general - so bad Grits has suggested it compares unfavorably to Texas Gov. Rick Perry, who at least hasn't let his executive power on that score completely atrophy.

Late last year P.S. Ruckman tallied up Barack Obama's sorry total, and recently he calculated that President Obama ranks near or at the bottom both in both the number of months in his term during which he granted clemency (3) and the longest number of months without issuing clemency at all (24). So far, Obama has issued 22 mostly meaningless pardons, typically given to older folks (average age 61) for petty, long ago crimes, plus one sentence commutation since taking office. He's on track to grant fewer pardons and/or sentence  commutations (by far) than any president at least since World War II, all but completely ignoring this already withered and decrepit constitutional function. Meanwhile, here's the impressively long list (pdf) of requests for commutations of sentences President Obama has denied since taking office.

Grits doubts this will become a partisan campaign issue, but when it comes to exercising the clemency power, one could justly refer to the President as "Obama the Merciless."

Few counties seek funding so far to update case disposition data

So far, Travis and Webb are the only two Texas counties to apply to the Governor's Criminal Justice Division for extra funds to pay for updating their case disposition data, reports the Odessa American. The CJD issued a memo last month saying grant funds will be cut to counties that don't update their 2006-2010 disposition data to include at leat 90% of arrests. The story describes a bit of behind-the-scenes pushback from counties:

Donald Lee, the executive director of the Texas Conference of Urban Counties, said the statistics are misleading and even prevent most counties from reaching the goal.

“You can never get to 100 percent in the most recent years because 100 percent is all arrests reporting disposition,” he said. “If you don’t dispose of a case (in court), even for good reason, you didn’t report the disposition.”

Many of the most serious crimes in Ector County, such as capital murders and sexual assaults, can take up to three years or longer before they go to trial, and Lee said such cases would count against a county.

Because of this, the TCUC, Texas Association of Counties, County Judges Association, Texas Association of Regional Counsels of Government, Texas District and County Attorneys Association, Department of Public Safety and CJD have come together to discuss what could make the process better and help counties reach attainable reporting goals.

“We are really encouraged in the governor’s office approach to improving it,” Lee said. “I wouldn’t say it has been a fight. The governor’s office has been very receptive to the issues counties have been addressing.”

Grits doesn't agree that these data are misleading, nor is it accurate IMO that a significant number of FY 2010 cases remain unresolved. The handful of capital murder and rape cases that drag on for years won't remotely account for 10% of arrests. And there shouldn't ever be an instance where counties simply "don’t dispose of a case (in court)." Whether the case is prosecuted or dismissed, SOMETHING happens with it.

The American also alleges data-entry problems on the state end that could interfere with counties meeting the governor's goals.

Ector County Judge Susan Redford said technical issues with the state’s reporting system have kept Ector County limited to the 84 percent it has reported from 2006 to 2010.

“The (Criminal Justice Information System) is overwhelmed and not accepting a lot of the reports at this time due to technical difficulties,” she said.

This whole issue has been a bit of a sleeper and I'm surprised the press hasn't paid  more attention to it. Grits supports the governor's new requirements, believing that the failure to include case dispositions in state data creates significant problems and unintended consequences for individuals, particularly those with dismissed cases, pled-down charges, etc.. Counties won't reach 100%, especially for the last year or so of the range, but they're not being asked to, and 90% is an eminently reasonable compromise. (Make me philosopher-king and I'd have put it at 95%.) In most cases, there's no good reason for failing to record dispositions from two or more years ago except, basically, a lack of want to. If massive Harris County can meet the new standard, and they do, all the other counties whose data is insufficient really don't have much of an excuse.

• What grants might be cut if counties don't improve crime data?
• Most Texas counties don't meet governor's new crime data criteria, may lose grants
• Governor's office will withhold grants for counties not updating criminal histories

Most Texas counties don't meet governor's new crime data criteria, may lose grants

Grits mentioned earlier this month that the Governor will withhold a portion of federal grant funding from counties beginning next year if they don't adequately update criminal history records, particularly dispositions of cases after an arrest has been made. Of the largest counties, Harris and Bexar have no worries, but Dallas, Travis, Tarrant, El Paso, and many other counties all have significant remedial work to do to avoid losing grant funds. (Find a complete list of non-compliant counties below the jump.) I asked the Governor's office for a copy of the memo, and here's the text:

To:                        Criminal Justice Division (CJD) Grant Recipients of Future Funds
From:                    Christopher Burnett, CJD Executive Director
Date:                    December 14, 2011
Re:                       Important Changes in Eligibility Requirements for Future Grants


While most counties have made great strides over the last few years in reporting criminal history dispositions as required by Code of Criminal Procedure, Chapter 60, to the Texas Department of Public Safety (DPS), the State Auditor’s September 2011 audit of the reporting requirement system shows that more needs to be done.  To assist this effort, the Criminal Justice Division (CJD) is taking the following steps:


Effective September 1, 2012, each county must comply with Chapter 60 reporting requirements in order for the county or any political subdivision within that county to be eligible for grants under CJD’s Justice Assistance Grant (JAG) program.  This means that by August 1, 2012, each county and any political subdivision within that county that has applied to CJD for JAG grants must provide CJD with a criminal history disposition completeness report documenting that it has reached a 90% disposition completeness rate for adult arrests for calendar years 2006-2010, as measured by DPS.  All jurisdictions, such as cities, in a non-compliant county will be ineligible for JAG funds regardless of whether the county itself applied to CJD for JAG.

Effective September 1, 2013, any entity, public or private, in a county that does not report at 90% or above will be ineligible to receive grants from any state or federal fund sources managed by CJD. 

CJD will discuss possible grant funding to help counties get into compliance. 

Criminal histories must be reported correctly and promptly to DPS as required by Chapter 60.  Many public and private employers use criminal histories as part of the review process when hiring persons for sensitive positions.  Texas and national law enforcement officers need complete criminal histories during traffic stops or during other contacts.  Also, this information is vital for judges to make proper decisions regarding magistration and sentencing.  For these reasons, the Texas Legislature has stressed the need for timely and complete information and has established timelines for counties to achieve average compliance reporting at 90% or above.

I urge you to pay close attention to how these reporting requirements may affect your entire county’s eligibility to receive future grants from CJD.  Please contact Judy Switzer (judy.switzer@gov.texas.gov) for CJD and JAG questions.

If you have technical questions regarding the Chapter 60 data reporting requirements, please contact Angie Kendall at the Texas Department of Public Safety at angie.kendall@dps.texas.gov. 


Click here for a list of counties and their criminal history reporting averages with DPS.

Sincerely,

Christopher Burnett
Executive Director
Criminal Justice Division

When I communicated with the governor's office, they emphasized they were willing to help fund data entry and improvements to data systems, so there's a carrot to go along with the stick. Though it would have been less time consuming to compile a list of counties that DID update reports in 90% of cases, here's the list of the 191 (out of 254) Texas counties that didn't provide sufficient case dispositions for '06-'10, as of the most recent November 2011 reporting period. Each of them, if they don't improve, is at risk of losing a portion of federal grant money flowing into their jurisdiction.

Anderson: 46%
Andrews: 87
Angelina: 84
Archer: 84
Armstrong: 67
Atascosa: 70
Bastrop: 78
Bee: 65
Bell: 87
Blanco: 81
Borden: 64
Bowie: 80
Brazos: 88
Brewster: 57
Briscoe: 86
Brooks: 22
Brown: 86
Burleson: 83
Burnet: 75
Caldwell: 84
Calhoun 84
Cameron: 43
Camp: 78
Carson: 84
Cass: 71
Castro: 42
Chambers: 88
Cherokee: 84
Childress: 77
Clay: 83
Cochran: 55
Coke: 83
Coleman: 81
Collingsworth: 39
Comal: 63
Comanche: 88
Concho: 56
Coryell: 83
Cottle: 53
Crane: 88
Crockett: 82
Crosby: 84
Culberson: 28
Dallam: 76
Dallas: 80
Dawson: 85
Deaf Smith: 86
Denton: 85
Dimmit: 39
Donley: 72
Duval: 62
Eastland: 87
Ector: 84
Edwards: 27
El Paso: 81
Fannin: 84
Fayette: 88
Fisher: 86
Floyd: 74
Foard: 9
Fort Bend: 80
Franklin: 69
Freestone: 69
Frio: 52
Garza: 74
Glasscock: 36
Gonzales: 78
Gray: 70
Grayson: 84
Gregg: 76
Grimes: 59
Guadalupe: 87
Hale: 45
Hall: 47
Hamilton: 73
Hansford: 86
Hardeman: 82
Hardin: 83
Harrison: 84
Hartley: 82
Hays: 83
Hemphill: 76
Hidalgo: 73
Hill: 44
Hockley: 63
Howard: 88
Hudspeth: 2
Hunt: 89
Hutchison: 64
Irion: 87
Jack: 85
Jackson: 87
Jasper: 77
Jeff Davis: 25
Jefferson: 83
Jim Hogg: 72
Jim Wells: 54
Johnson: 88
Jones: 89
Karnes: 75
Kaufman: 85
Kendall: 64
Kenedy: 75
Kent: 81
Kerr: 87
Kimble: 89
Kinney: 54
Kleberg: 81
La Salle: 56
Lamb: 86
Lee: 73
Liberty: 88
Limestone: 83
Live Oak: 74
Llano: 67
Loving: 22
Lubbock: 85
Lynn: 73
Martin: 56
Maverick: 30
McCulloch: 82
McMullen: 88
Medina: 66
Midland: 83
Mills: 88
Mitchell: 85
Montague: 63
Nacogdoches: 84
Navarro: 81
Nueces: 84
Oldham: 61
Orange: 87
Panola: 61
Parker: 86
Parmer: 77
Pecos: 59
Polk: 83
Potter: 89
Presidio: 20
Rains: 87
Randall: 89
Reagan: 72
Real: 56
Red River: 67
Reeves: 54
Refugio: 86
Roberts: 56
Robertson: 89
Rockwall: 89
Runels: 78
Rusk: 78
San Augustine: 48
San Jacinto: 81
San Patricio: 89
San Saba: 63
Schleicher: 88
Scurry: 87
Shelby: 78
Sherman: 60
Somervell: 86
Starr: 19
Stephens: 84
Sutton: 68
Swisher: 30
Tarrant: 69
Terrell: 27
Terry: 59
Throckmorton: 74
Titus: 61
Tom Green: 89
Travis: 77
Trinity: 39
Tyler: 83
Upton: 74
Uvalde: 60
Val Verde: 69
Van Zandt: 73
Victoria: 79
Walker: 74
Waller: 74
Webb: 30
Wharton: 86
Wheeler: 74
Wichita: 81
Willacy: 63
Wilson: 87
Winkler: 79
Wood: 86
Yoakum: 83
Young: 84
Zapata: 3

Governor's office will withhold grants for counties not updating criminal histories

The Governor's office will begin restricting grant money to jurisdictions that don't upload sufficient crime data into the state system, according to a story from the Corpus Christi Caller Times that could almost certainly be localized in many other Texas jurisdictions ("State warns of grant cuts for Coastal Bend Law Enforcement," Jan. 6):

Nueces County law enforcement agencies could lose about $2.5 million in funding by 2013 should they fail to meet a Sept. 1 deadline for uploading criminal histories into a statewide database.


The bite out of the Nueces County Sheriff's Office and Corpus Christi Police Department could be as high as $213,000 if officials don't upload data from 90 percent of all adult criminal cases that originated between 2006 and 2010, Nueces County government affairs director Tyner Little said.

Nueces County has uploaded 84 percent of the cases from that period of time, according to data provided by the governor's office.

Information such as a suspect's arrest date, charge and final disposition is uploaded to the Texas Department of Public Safety's Texas Criminal Information Center, a real-time database accessible to law enforcement agencies and prosecutors.

Law enforcement agencies statewide were warned of the potential grant cuts in a memo sent last month by the governor's criminal justice division.

Officials from the county information technology department met Thursday with representatives from the district attorney, sheriff's and district clerk's offices as well as city police officials to determine why the data is lagging.

"The problems are all over the map," Little said.

Last year, the state auditor issued a report listing counties (pdf, p. 35) that failed to submit dispositions for arrests from two years ago, finding many agencies' data woefully incomplete. Judging from that data, this will be a big challenge for many counties, including most of the big ones except Harris.

Related: Dismissals, outcomes, often don't make it into state criminal history database.

Perry persists in paltry, pusillanimous pardon policy

Well I was wrong: Grits predicted Governor Perry would issue 10 or more pardons this week after issuing none for the rest of the year. I was right to expect some, but guessed high: He issued eight - all for trivial, long ago offenses. Three of the eight don't even live in Texas anymore. While in general Grits calls "Humbug!" on Christmastime pardons, this was a missed opportunity. Grits had suggested that if the Governor issued 23 pardons or more, he would ensure positive national coverage by pardoning more people in one day than Barack Obama has granted clemency in his entire tenure. (Perry surpassed that mark in two prior years.) But instead, with Mitt Romney on the campaign trail saying he won't grant pardons at all, Governor Perry decided to play it safe. Disappointing.

MORE: From the Texas Tribune.

Pardons push positive Perry press: More this week?

Grits predicted Gov. Perry would receive positive press from his parsimonious clemency record if the campaign played up the issue, and indeed, as if on cue, Pro Publica came out with a story titled "Perry more generous with pardons than Romney." Since Perry usually grants pardons to about 3% of those requesting them, but some years granted up to 10%, Grits argued back in October that Perry could use Christmastime clemency to separate himself from the other presidential candidates:

In the past, Perry has rejected about 2/3 of clemency recommendations from the Texas Board of  Pardons and Parole. Perhaps a good start would be to simply accept more or most of the BPP's recommendations this year (it's not like the people he's appointed to the parole board are a bunch of softies) instead of selecting a symbolic few. Nobody can grant clemency except state or federal executives like Perry and Obama, so a robust clemency approval by Perry this December might generate at least a news cycle or two of interesting press analyzing the pair's relative clemency records (where Perry already compares favorably). By granting more-than-usual clemencies this December, Perry would likely generate good media with little near-term Wille-Horton-esque risk, while setting the story up inevitably as comparing Perry and Obama (since none of the other GOP candidates can grant pardons) and thereby making the governor appear more presidential.

I'm not confident Perry will do that, but if he doesn't he'll have missed an opportunity to separate, even elevate himself in a controlled, positive media moment from the other GOP contenders and the president. And at the moment, his is a campaign that needs to separate itself from the pack.

I'm generally not a fan of Christmastime pardons. From a candidate's perspective, though, the Pro Publica piece is one of the few, recent positive articles I've seen on Perry and it would be a wasted political opportunity if the governor didn't use the Christmas pardon ritual to his own public-relations benefit, especially now that the campaign can see how the issue plays in the national media.

Grits' prediction: Governor Perry issues 10 or more pardons between now and Christmas day, making the national news cycle for a day or two with mostly positive press. That said, if he really wants to use the issue to trump the president, Gov. Perry should issue at least 23 pardons, a number he surpassed in 2003 and 2005. That would also be one more than President Obama has given out since he took the reins of power three years ago: A sure-fire news hook.

MORE: At Sentencing Law & Policy, Doug Berman  comments on the Pro Publica story and this post, wondering if, "with the Iowa evangelical vote still up for grabs ... Perry might try to make hay by finding a few very appealing stories of redemption to spin around a few high-profile clemency grants.  I am not counting on such a development," wrote Berman, "but I sure like the notion that for once a politician might start granting, rather than consistently deny, clemency requests in an effort to curry political praise."

See related Grits posts:

• Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him
• Perry should expand clemency, trump Obama in Christmastime ritual

Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him

UPDATE: See the Pardonohenry.org website and campaign blog which were inspired by this post. Sign a petition asking President Obama to pardon this great American writer.
____________________________

Oh cruel, bitter irony!

After legendary Austin short-story writer O Henry's pardon was turned down some years back, and given President Obama's own stingy record regarding pardons, it's especially annoying to learn, via PS Ruckman at Pardon Power, that President Obama's speech writers had the gall (or perhaps the philistinism) to include a quote from O Henry in the President's remarks "pardoning" a Thanksgiving turkey.

O Henry, whose pardon application has been on Ruckman's clemency watch list for ages, always claimed he was innocent, but when accused of embezzling $748 from the Austin bank he worked for, he fled to Honduras, returning to face federal charges in 1898 after his wife became terminally ill. In a practice that wouldn't be allowed in today's TDCJ, he "began writing stories to support his young daughter while he was in prison," moving to New York to continue his career after his release.

According to the Houston Chronicle's coverage in 1985, O Henry's (i.e, William Sydney Porter's) federal pardon application, championed by supporters including late-Texas state appellate court Judge Trueman O'Quinn, was turned down at that time because "A pardon isn't complete until it's accepted by the person, and a dead man can't accept it." In other words, Reagan's pardon office refused to issue a posthumous pardon.

As luck would have it, though, last year a Texas Attorney General's opinion cleared the way for the Texas Governor to issue posthumous pardons so that he could give one to Timothy Cole, who was falsely convicted of rape but wasn't exonerated until years after he died in prison. The Texas opinion took head on the question of whether the US President may issue pardons when the recipient is dead and cannot "accept" it: "the United States Supreme Court has since recognized that 'the requirement of consent [to a pardon] was a legal fiction at best' and has generally abandoned the acceptance doctrine since adopting it in 1833. Schick v. Reed, 419 U.S. 256, 261 (1974)." So according to the formal legal advice given to Rick Perry, the President has full authority to issue posthumous pardons and the "acceptance" requirement is a "legal fiction."

Grits has argued previously that Governor Perry would be wise to use his gubernatorial pardon power more generously than usual this Christmas season, both to distinguish himself from his GOP rivals - none of whom presently possess comparable clemency authority - and to highlight President Obama's abysmal clemency record, which even the President's liberal supporters deplore. (Perry's isn't great, but it's better than Obama's, granting clemency in 2003 alone more often than has Obama during his entire tenure.) IMO that'd be good campaign strategy for an incumbent governor looking to burnish his positive image in the holiday season, using the authority of his office to seize press attention for a news cycle or two and to elevate himself above his rivals.

Why not issue a coupla dozen or so gubernatorial pardons as a news hook, then attack Obama for his Scrooge-like clemency practices and for quoting a Texan during his trivializing turkey-pardon who merits a posthumous pardon himself. It would cost him nothing, it's an homage to a revered and influential Texan, and it rebukes Barack Obama after the President used the words of the Texas writer whose pardon was snubbed to commemorate the disingenuous ritual of pardoning a turkey.

Grits says eat the turkey, pardon O Henry!

See related Grits posts:

• Perry should expand clemency, trump Obama in Christmastime ritual
• Today in History: O Henry leaves prison, launches literary career

'The GOP and Criminal Justice'

At The Crime Report in an article with the same title as this post, Steve Yoder argues that Rick "Perry’s death-penalty record (presiding over more executions than any governor in modern times) obscures reform-minded legislation he’s signed," suggesting that "Whether a Republican president signs on to reform measures ... would depend on which contender won. As former governors, Perry and Mitt Romney have legislative records that suggest they’re open to change."

See related Grits posts:

• New York Times takes on Perrty's mixed criminal justice record 
• Perry should expand clemency, trump Obama in Christmastime ritual 
• Perry signed bill vetoed by Gov. Moonbeam banning shackling of inmates giving birth 
• Texas death sentences plummeted during Bush, Perry tenures  
• Rick Perry has little role in 'ultimate justice 
• Should reformers praise or chastise Rick Perry's criminal justice record? 
• Things to like about Rick Perry as a criminal justice reformer

New York Times takes on Perry's mixed criminal justice record

The New York Times published a feature today by Deborah Sontag on Gov. Rick Perry's Texas criminal justice record, mostly focused on the death penalty but with a handful of comments, including from your correspondent, suggesting that the exclusive focus on capital punishment risks ignoring more moderate aspects of the Governor's record:

Scott Henson, author of “Grits for Breakfast,” a well-read blog on Texas justice, said that Mr. Perry, believing that “only egg-headed liberals” oppose the death penalty, liked to bait the news media so he would be given a chance to show some swagger.

“And y’all take the bait,” Mr. Henson said, “even though Rick Perry has nothing to do with executions. All his bluster about the death penalty is like the rooster who crows taking credit for the sun rising.”

Grits has argued an admittedly counterintuitive position articulated best in the story by my colleague Jeff Blackburn from the Innocence Project of Texas. He told Sontag that the politics of capital punishment make it a special case but that, by comparison, the rest of Perry's criminal justice record is admirably moderate:

Death sentences and average yearly executions have declined during [Perry's] tenure compared with that of his predecessor, George W. Bush. And persistent efforts to fix Texas’s troubled justice system have finally borne some fruit. Mr. Perry has not been a crusader, but he has signed reform-minded legislation and acknowledged some of the system’s mistakes, once referring to an exonerated prisoner’s murder conviction as a “great miscarriage of justice.”

“He has done more good than any other governor we’ve ever had,” said Jeff L. Blackburn, chief counsel of the Innocence Project of Texas. “He approaches criminal justice issues like a lay person rather than like a prosecutor or judge, which makes him open-minded and willing to embarrass the system. Unless, of course, it involves the death penalty.

“On the death penalty, Rick Perry has a profound mental block,” Mr. Blackburn continued. “The death penalty is part of our fine state’s religion; it’s somewhere up there with football. To oppose or weaken it would be like playing with dynamite, and Rick Perry, a quintessentially political person, is not going to blow himself up.”

Certainly on any issue remotely related to the death penalty Gov. Perry may be counted on to give voice to the most extremist, regressive and aggressive positions possible, blatantly pandering to what Blackburn called the "state's religion." The on-the-ground reality, though, looks much different. Sontag notes that, during Perry's tenure, the number of new death sentences in Texas steadily declined from 33 in his first year in office to seven last year, at least in part because of legislation Perry signed into law improving capital defense standards and creating a life without parole option for juries. Meanwhile, Texas passed a slew of criminal justice reform measures unrelated to the death penalty on Perry's watch. And after the Tulia scandal, on the advice of his "fixer," Jay Kimbrough, Perry boldly de-funded the state's system of regional narcotics task forces to pay for drug courts, diversion programs and border-security initiatives.

In the scheme of things, the death penalty is a minor piece of the justice system. It's worth remembering that, while seven new people were sent to death row last year, at any given moment around 750,000 adults in Texas are in prison, jail, on probation or on parole. Capital punishment may be important to many from an ideological perspective, but too often myopic focus on the death penalty by activists and the media drown out debates over issues surrounding the other 3/4 million people supervised by the Texas justice system.

Governor Perry is no reformer and his views on the justice system certainly don't reflect my own. But neither does the caricature of Rick Perry as an execution-crazed, tuff-on-crime Yosemite Sam figure stand up to close scrutiny. The Times article shows the national media is struggling to make sense of the disconnect.

See related recent Grits posts:

• Perry should expand clemency, trump Obama in Christmastime ritual

• Perry signed bill vetoed by Gov. Moonbeam banning shackling of inmates giving birth

• Texas death sentences plummeted during Bush, Perry tenures

• Rick Perry has little role in 'ultimate justice

• Should reformers praise or chastise Rick Perry's criminal justice record?

• Things to like about Rick Perry as a criminal justice reformer

Perry should expand clemency, trump Obama in Christmastime ritual

Last year, Grits authored a column for the Dallas Morning News published December 30 analyzing Rick Perry's paltry Christmastime pardons and lamenting the way holiday pardons minimize the intended, much-more robust role of executive clemency. Since most pardons, experts tell us, are issued in December, I thought I'd recycle last year's prose in time to suggest a more aggressive approach for this year's Christmas pardon ritual on the front end: Governor Perry (and for that matter, President Obama) should consider pardoning or commuting sentences for whole classes of offenders - any class, however modest - instead of picking a few, symbolic cases from many decades ago. Here's the argument I made in the Dallas News last year, edited slightly to add links and update statistics, followed by additional thoughts on how this analysis applies during the campaign season.
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Holiday pardons send wrong message

Dalas Morning News, Dec. 30, 2010

In Federalist Paper 74, Alexander Hamilton predicted today's sorry state of justice without "easy access" to clemency from the executive: "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Who can look at America's prisons - a nation with 5 percent of the planet's population and 25 percent of its prisoners - and not recognize the sanguinary and cruel countenance of justice feared back in the day by Publius?

Clemency is now treated mostly as a holiday ritual, with little more practical significance than the pardoning of Thanksgiving turkeys. True to form, this month President Barack Obama issued nine pardons and Texas Gov. Rick Perry issued eight. In both cases, the clemency granted was a symbolic gesture focused on trivial, long-ago cases chosen more for their lack of political risk than the particular merits of the petitioners.

Obama took longer than any other Democratic president to issue his first, paltry pardons.

And while Perry's done better than the president - maxing out at 73 pardons in 2003, including 35 convicted in the notorious Tulia drug sting - he pardoned just eight people in fiscal 2009, and the fiscal 2010 total won't be much higher.

Georgia, by contrast, pardoned or restored rights to 561 people in fiscal 2010 - about four times as many as our governor has pardoned in his entire gubernatorial tenure. In Georgia, 38 percent of clemency applications are granted. In Texas, it's less than 3.5 percent.

I've become disenchanted with the Christmastime pardon ritual, for reasons ably articulated by pardon expert P.S. Ruckman: "Christmastime pardons send a very wrongheaded - if not outright dangerous - signal to the American people that pardons are something like Christmas gifts, passed out during the holiday season, to those who actually may or may not deserve them. Which is to say, it is no wonder the [federal government is] so shy about pardons. The very timing of them implies their work [regarding] the assessment of pardon applications is a joke."

Indeed, it's hard to not consider these pardons a joke when you look at the details. For example, Perry granted clemency to a 73-year-old man for a theft conviction from 1955. If the governor had waited any longer, he might have had to issue his second-ever posthumous pardon. Another pardon recipient spent three days in jail 31 years ago for unlawfully carrying a handgun. If it's true that justice delayed is justice denied, these latter-day pardons hardly constitute justice.

And why pardon just one individual who "was convicted of possession of marijuana in 1971 at the age of 21"? Are there no other men and women who've grown up to lead productive lives after a pot conviction in their youths? Texas arrests tens of thousands for pot possession every year; hundreds of thousands are in similar circumstances who will never benefit from such gubernatorial largesse.

If the governor is going to issue pardons for such petty offenses, the fair thing would be to pardon entire classes of offenders - for example, pot offenders with no other convictions on their records 10 years later. For that matter, commuting long drug sentences and those of low-risk elderly offenders with high health care costs would actually save the state a great deal of money. Plus, the possibility of clemency creates incentives for good behavior.

I'm not holding my breath for Perry or Obama to embrace a robust, Hamiltonian clemency, but there's a strong case to be made that they should treat the pardon power as more than just a token Christmastime genuflection to values of mercy and forgiveness - which are then ignored in practice the rest of the year.
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Certainly Perry isn't alone in this. Sentencing Law and Policy recently published a post titled "Clemency policy and practice as symbol of failed Obama presidency," arguing that Obama's failure to exercise his clemency authority shows he "lacks the core convictions and political courage" for the job he holds. In that vein, why shouldn't Gov. Perry use gubernatorial clemency power to differentiate himself from the President?

Who could argue today that, as Hamilton predicted, "The criminal code ... partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel"? If you're going to embrace states rights, it seems to me, you need to also demonstrate you're prepared to shoulder these long-neglected Hamiltonian responsibilities incumbent to states' governance. I harbor no illusions that Perry will exercise clemency authority as aggressively as suggested in that column, but there's a less radical, more politic version that doesn't seem so out there to me:

In the past, Perry has rejected about 2/3 of clemency recommendations from the Texas Board of  Pardons and Parole. Perhaps a good start would be to simply accept more or most of the BPP's recommendations this year (it's not like the people he's appointed to the parole board are a bunch of softies) instead of selecting a symbolic few. Nobody can grant clemency except state or federal executives like Perry and Obama, so a robust clemency approval by Perry this December might generate at least a news cycle or two of interesting press analyzing the pair's relative clemency records (where Perry already compares favorably). By granting more-than-usual clemencies this December, Perry would likely generate good media with little near-term Wille-Horton-esque risk, while setting the story up inevitably as comparing Perry and Obama (since none of the other GOP candidates can grant pardons) and thereby making the governor appear more presidential.

I'm not confident Perry will do that, but if he doesn't he'll have missed an opportunity to separate, even elevate himself in a controlled, positive media moment from the other GOP contenders and the president. And at the moment, his is a campaign that needs to separate itself from the pack.

MORE: For reference, I added FY 2010 clemency data from the Board of Pardons and Paroles annual report (pdf) to update the chart Grits compiled last year on Rick Perry's clemency record, which, while timid, is still superior to the president's:



RELATED: Should have mentioned that the Texas Tribune has a widget to search Rick Perry's past pardons and related acts of clemency.

Texas death sentences plummeted during Bush, Perry tenures

The number of Texas executions may draw cheers for Rick Perry on the campaign trail, and certainly it's been a big applause line for the governor that, "in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you're involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed." That's tough talk, but is it true? At Courtex, Office of Court Administration chief Carl Reynolds says that "imposition of the death penalty has gone down fairly dramatically in recent years," and yesterday published this remarkable chart to prove it:

Carl adds, "one thing I find interesting about this graph is the fact that life without parole was not adopted until 2005 (S.B. 60 by Lucio), but the downward trend was well established well before then." I agree, and that's one reason Grits opposed the 2005 LWOP law, believing that death-penalty abolitionists were throwing their clients under the bus in deference to ideology by eschewing the "capital life" option. In the future, as the use of LWOP broadens (it's already been extended to certain non-capital cases) and geriatric healthcare costs continue to skyrocket, IMO that decision will increasingly appear foolish and ill-advised, contributing to the Californication of Texas justice. (About 6% of Texas prison inmates are lifers, compared to 20% in California.)

Other charts at Courtex demonstrate a similar drop in new death sentences in Harris County, which is responsible for 106 of 308 offenders on death row, Reynolds reports.

MORE: A prison-guard commenter at TexasJutsice.org agrees with criticism of the LWOP law for a different reason: "because they have no incentive to behave. Look at the last Polunsky escape attempt. All LWOP."

Perry signed bill vetoed by Gov. Moonbeam banning shackling of inmates giving birth

Recently Grits has written a couple of posts which received some national attention describing how Gov. Rick Perry's criminal justice record is more moderate than is often portrayed, and even more moderate than most other US governors, whether Republican or Democrat. The latest example comes out of California, where Governor Moonbeam himself, Jerry Brown, vetoed legislation that would have banned shackling pregnant women while they're in labor and/or giving birth. By contrast, in 2009 Gov. Perry signed similar anti-shackling legislation in Texas being pushed by the Texas Jail Project and the ACLU.

I tell folks all the time - though almost nobody seems to believe it - that criminal-justice issues (with the exception of the death penalty) simply don't cut along traditional liberal-conservative lines in the fashion of the usual Culture War debates, and that Texas has passed more criminal-justice reform legislation since the GOP took over the Lege than was ever even considered when Democrats were in charge. I say that not to slam the Dems or to suck up to the Republicans; it's simply, empirically true. The difference in Perry's and Brown's stances regarding shackling pregnant women while they're giving birth is just the latest example to add to the list.

Rick Perry has little role in 'ultimate justice'

John Burnett at NPR has a piece up on Governor Rick Perry and the death penalty titled "In Texas, Perry has little say in 'ultimate justice'," in which your correspondent is briefly quoted. Burnett notes that, "It's often said the Texas governor 'presides' over an execution, but that's inaccurate. He doesn't sign a death warrant or set an execution date, as in some states. In Texas, the only power the governor has is to grant a single 30-day reprieve — and then only if his Pardons Board recommends it."

Indeed this is the first national news story I've seen to give Rick Perry credit for actually reducing the number of death sentences in Texas via life without parole legislation he signed in 2005, reporting that:

eight people were sent to death row last year in Texas, compared with 49 death sentences in 1994.

Criminal justice advocates won't go so far as to call Perry a reformer, and indeed, the governor has done little to exercise clemency in death penalty cases in which there are clear procedural flaws.

But to judge him solely on the 236 executions on his watch is unfair, says Scott Henson, who writes the respected criminal justice blog Grits for Breakfast.

"Capital punishment is a media fetish," he says. "It's not really something that stands out as a remarkable part of Rick Perry's criminal justice record."

Henson has a theory: Perry has so little to do with executions that he strains to take credit for them, knowing how popular capital punishment is with voters.

An ally from the Lege emailed to point the story out to me and declared, "I'm sure you will get some hate mail from the anti-dp crowd," but "I think you're right."

See these related, recent Grits posts:

• Should reformers praise or chastise Rick Perry's criminal justice record?
• Things to like about Rick Perry as a criminal justice reformer

Should reformers praise or chastise Rick Perry's criminal justice record?

Via Sentencing Law & Policy, my colleague Cory Session of the Innocence Project of Texas went just a bit further in praising Governor Perry's criminal justice record than Grits would have. According to Yahoo! News:

Cory Session's brother Tim Cole died in the middle of a 25-year prison sentence for a crime he didn't commit.

So it's something of a surprise that Session, who serves a policy director for Texas' Innocence Project, has nothing but good things to say about Texas Gov. Rick Perry.

Perry is known as a tough-on-crime governor who heartily supports the death penalty. He's presided over more executions than any other governor since the death penalty was reinstated 35 years ago. When a special commission began to look into evidence that Perry could have presided over the execution of an innocent man, the governor abruptly removed three of its members and appointed allies in their stead, effectively quashing the probe.

But Session says Perry's support of other criminal justice reforms overshadow his record on the death penalty.

"Governor Perry has done an exceptional job when it comes to criminal justice reform, more so than any other governor in Texas history," Session told The Lookout. "That's a record nobody can take away from him. His stance on the death penalty, well that's another thing. But we are very pleased with that record that he has."

Readers may recall that last month Grits compiled a list of "Things to like about Rick Perry as a criminal justice reformer," citing a fairly substantial list of criminal-justice reforms Perry has signed into law over the years, as well as his pardons of Tim Cole, the Tulia defendants, and other reform-minded actions.

Nearly all of the national criticism of Texas justice during Perry's campaign has centered on the death penalty, but seldom is Perry given credit for signing a life-without-parole law in 2005 that reduced new death sentences to low levels not seen since the Texas reinstated the practice three decades ago. In FY 2009, according to the Texas Coalition to Abolish the Death Penalty, Texas juries sent just eight new defendants to death row - the lowest number in any single year under (at least) the state's four prior governors. That's a direct result of legislation Rick Perry signed. (CORRECTION: A reader alerts me that, according to TDCJ's annual statistical reports, 11 new defendants were sent to death row in FY 2009 and 10 in FY 2010, numbers which are for some reason slightly higher than reported in the MSM.)

It's been said many times that Texas executed more people during Rick Perry's tenure than under any modern US Governor, but that stems mainly from two factors: His longevity in office and the fact that, because death cases take so long to get through the appeals process, the number of executions in any given year more reflects the policies of the past than the present. Most executions on Perry's watch stemmed from convictions obtained during the tenures of Ann Richards, Bill Clements, and Mark White, plus a few from the Bush era, and his record on the subject differs little from those governors save for his support of life without parole (which couldn't pass under any of his predecessors when Democrats controlled the Legislature). He also signed into law the Texas Fair Defense Act, which created improved standards for attorneys representing death-eligible clients.

Despite the common refrain that Perry "presided" over 235 executions (so far), it's not like he plays a big role in the process. The number of death sentences carried out in Texas really is a function of decisions made years ago by prosecutors, juries and judges, (not to mention the shortcomings of an often pathetic criminal defense bar). The Governor simply has very little to do with it, and his clemency power is much more restricted than executives in other states. Just as his critics overstate the governor's role, Rick Perry claiming credit for the number of executions in Texas is a lot like the rooster who believes his crowing caused the sunrise.

IMO, Perry has latched onto the death-penalty issue so vehemently because it's virtually the only item in his portfolio that crosses partisan lines to grab independents and conservative Democrats (since the death penalty is widely supported across all those demographics). Indeed, polls show that even those who believe the state has already executed an innocent person still support the death penalty by roughly a 60-40 margin. From a purely Machiavellian political standpoint, there's simply no downside for politicians in Texas (or in the GOP primary) from being seen as an eager executioner.

Indeed, arguably death-penalty demagoguery has played an important strategic role in Texas' criminal justice reforms, diverting media focus from more  workaday criminal justice issues to an area where pols can look "tuff," even as they enact more moderate or even progressive reforms in other areas. Perry has signed legislation diverting tens of thousands of criminals from prison, but because of the "most-ever executions" tag, it'd be impossible in the political arena to successfully label him "soft on crime."

All that said, I also agree with Texas Criminal Justice Coalition chief Ana Correa's assessment in the story, that "He has not been an obstacle for us but he has also not been a key leader." (In the interest of full disclosure, I'm presently employed doing consulting work for both TCJC and the Innocence Project of Texas.) Criminal justice reform has never been a Perry priority, but as support for reforms grew among Texas Republicans, quite a few good bills passed on his watch and with a few notable exceptions he usually signed them. Governors in Texas wield relatively little power save for vetoes and appointments, so not vetoing things gets him credit, in my book, but it doesn't mean he'd make criminal-justice reform any sort of priority if he were President. Indeed, I seriously doubt he would do so.

Rick Perry doesn't deserve demonization for his criminal-justice record; he's not the one-dimensional, execution-crazed nutjob that death-penalty abolitionists have portrayed. But he also doesn't merit the effusive praise Cory lavished on him in this particular article. Tolerating reform is different from championing it.