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.

Reduction in federal pork one cause of reduced Texas traffic tickets

A commenter on the last Grits post suggested that a key reason the number of traffic tickets written by Texas police went down last year in Austin and elsewhere may have been cuts to the "Selective Traffic Enforcement Program" (STEP), which are federal pass-through grants distributed to law enforcement through the Texas Department of Transportation to pay for overtime devoted to traffic enforcement. And indeed, that may partially, but not fully, explain the recent decline in traffic tickets written by Texas police.

Searching around on TXDOT's website, I found this memo to law enforcement agencies (pdf) from April 2011 detailing 30% cuts to STEP grants - from $20.2 million to $14.2 million statewide - with a table at the end showing how much each department's grants were cut.

Houston, which has seen its number of traffic tickets decline, lost $360,000 with the reduction in STEP grant funds; Dallas' grant fell by a like amount. The Department of Public Safety took the biggest hit with a $424,521 reduction.

Austin lost about $158,000 in grant funding for overtime with that 30% reduction - not chump change, but not remotely enough to account for the 26% reduction in tickets they recorded in 2011. Austin PD says it wrote fewer tickets because of a policy change - "because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183" - which seems like a more plausible explanation.

Plus, data from the Office of Court Administration showing a statewide decline in tickets processed in municipal court covered the state fiscal year from September to August, so cuts that took effect April 29 wouldn't have impacted most of that year. In other words, there are indications the decline in ticketing a) predated cuts to STEP grants and b) are too large to be completely explained  by them. That's certainly one of several contributing factors, though, and perhaps reason to think the trend might continue in the near term without local traffic enforcement getting artificially pumped up through federal pork.

See related Grits posts:

• Austin police gave 26% fewer traffic tickets in 2011
• Most larger Texas police departments wrote fewer traffic tickets in 2011
• Why are Texas cops writing fewer traffic tickets?

DPS outsourced key border security tasks to shadowy private contractor

Here's a story that should have been broken by a Texas publication, but credit must instead go to Tom Barry at Alternet for a remarkable piece of reporting titled "Who Is Securing the Texas Border? How Private Contractors Mislead the Public, Then Get Rich Off Taxpayer Money."

Since 2006 many of the key figures in state-led border security operations and information campaigns have identified themselves as DPS employees or part of the Texas Rangers to the public, policy community and the media, disguising their true identities.

The business card he handed me during the sheriffs meeting identified Sikes as the director of the Border Security Operations Center (BSOC) – which is a type of fusion center for border-security operations in Texas. It’s a project of the Texas Rangers Division, which in turn is a branch of the Texas Department of Public Safety (DPS).

However, Mac Sikes is neither a Texas Ranger nor a DPS employee. Like most of the other key figures behind the Lone Star State’s border security campaign, Sikes is a contract employee.

A “senior operational analyst” at Abrams Learning & Information Systems (ALIS), Sikes became director of BSOC as part of the firm’s $3-5 million annual contracts with DPS since 2006. The recent DPS decision -- in response to a public records request -- to release the ALIS contract revealed the true identity of Sikes.

The Border Security Operations Center is the nexus of the Texas’ own border security initiatives, collectively known as Operation Border Star. ALIS, a homeland-security consulting firm with offices in Arlington, Virginia, was founded in 2004 by Ret. Army Gen. John Abrams to cash in on the billions of dollars in new government contracting funds that started to flow after the creation of the Department of Homeland Security in 2003.

Since 2006 ALIS functioned as the hidden force behind virtually all non-federal border-security operations in Texas. Whether it’s strategy formulation, border crime-mapping, operations management, or public relations, ALIS and its team of consultants have been closely involved in creating what Governor Rick Perry calls the “Texas model of border security.”

Says Barry, "It would be hard to exaggerate the degree to which Governor Perry and DPS Chief McCraw have outsourced state border-security, homeland-security, and public-safety programs to Washington Beltway contractors." Further, and this is certainly accurate, "There has been absolutely no review by policy makers or by the public of DPS outsourcing of border-security strategy and operations." Maybe now it will come.

In addition, wrote Barry, a February report (pdf) from the Texas state auditor found a number of irregularities with federal grant spending:

The audit reviewed a representative selection of cases among the $265.9 million in federal grants and subgrants to DPS -- in the areas of homeland security, border security, emergency management, and law enforcement interoperability.

Among the findings of negligence and incompetence were these startling instances:

• A draw-down of $755,509 in federal funds to issue a duplicate payment to one subgrantee.
•  Five of the six procurements (83%) examined by the auditor in the cluster of federal grants for homeland and border security were not bid competitively as required.
• DPS categorized four of the five procurements examined by the auditor as “emergency procurements,” and in three of those four DPS was unable to document why they were processed as “emergency” contracts.
• DPS has no system to track, administer, monitor federal subgrants – as federal guidelines require, leading to routine occurrences of duplicate payments, dipping into one federal fund to pay for unrelated programs, and failure to submit required reports and audits.
• Complete failure to track interest rates on unused federal funds and to remit those funds, as required by federal grant guidelines.
• Access to law-enforcement databases by contract programmers who lacked proper authorization or clearance.

This is a good example why Grits is under the impression that Texas would benefit from more original reporting on criminal-justice topics. Our media should have picked up on the outsourcing of border security operations long ago, but not a single reporter (MSM or otherwise) regularly attends meetings of the Public Safety Commission, much less covers the agency in remotely the level of detail, say, that the Austin Statesman's Mike Ward does for TDCJ. There's just a vacuum of coverage on the agency's activities that journalism should but doesn't routinely fill. I'm happy Mr. Barry wrote the piece, but every political or crime-beat reporter and editor in Texas should be kicking themselves for having missed the story for the last half-dozen years until after the practice is a fait accompli.

See more at Barry's blog, Border Lines.

MORE: From the Austin Statesman.

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

What grants might be cut if counties don't update crime data?

Earlier this week Grits published a list of Texas counties at risk of losing eligibility for federal Justice Assistance Grants if they don't meet minimum standards for recording judicial data, and at the time I asked the Governor's office for a list of those grants: Here are the grant awards for 2012 so far; they aren't in every county, but a lot of the bigger ones and all those along the border. Grant awards include funds for quite a few drug, mental health and other specialty courts, equipment purchases, border security grants, overtime pay, and an array of other specialized projects. Counties may become ineligible for these grant funds, the Governor's Criminal Justice Division has announced, if they don't update records to include at least 90% of criminal case dispositions from '06-'10. The CJD  has said they're willing to assist counties with grant funds to upgrade local data systems.

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

Feds nix grants subsidizing SHSU crime lab

Texas' newest crime lab, run by Sam Houston State University in Montgomery County, opened in 2010 with the promise of three years of federal startup funding. But after budget cuts associated with raising the debt ceiling, that funding dried up and the lab has had to nearly double some of its fees. Reported the Conroe Courier (Jan. 6):

The Sam Houston State University Regional Crime Lab, which is operated by the university’s College of Criminal Justice and located in The Woodlands, started taking evidence from five counties, including Montgomery, in November 2010. A $1.5 million federal grant got the lab up and running.

But those agencies using the lab had agreed to three years of federal funding, after which the lab would complete its transition to becoming self-sustaining through fees, said Assistant District Attorney Warren Diepraam, chief of the Vehicular Crimes Division for the Montgomery County District Attorney’s Office.

Diepraam said District Attorney Brett Ligon and SHSU officials have asked U.S. Rep. Kevin Brady, R-The Woodlands, to help find additional federal funds to supplement the fees paid by agencies.

“We are hopeful some funding will be found,” Diepraam said.

Montgomery County supplied 86 percent of the lab’s business, and the lab was charging a $200 flat fee for all drug and alcohol tests, Diepraam said.

Now, with the cut in funding, the lab will charge agencies $386 for alcohol tests and $290 for drug toxicology tests used for driving while intoxicated cases.

From November 2010 to October 2011, the lab ran 1,034 drug toxicology tests and 900 of those were from Montgomery County, Diepraam said. During that same time period, the lab analyzed 4,335 controlled substance evidence items, with 86 percent of them coming from Montgomery County, according to a casework overview by the lab.

The Regional Crime Lab will continue to run the drug toxicology and blood-alcohol tests, but all controlled substance evidence tests now will be sent to the Texas Department of Public Safety lab in Austin.

The average length of time for the Regional Crime Lab to turn around controlled substance tests is about two weeks, while the DPS lab can take up to nine months because of the volume of cases it gets from across the state, Diepraam said.

So the the county can pay $290-$386 for testing at the lab and get results back in 2 weeks, or send the sample to DPS and have it done for free, but not see results for up to nine months.

Unaddressed in the story, though, are the costs of delay: If the defendant is unable to make bail, say, in a controlled substance case, that also tacks on thousands of dollars in additional jail costs while wating for tests to come back. When that happens, the overall cost-benefit analysis still favors using the local lab, even at the higher price. Problem is, different revenue streams pay for lab testing and the jail, with different elected officials managing each sliver of the process. So budget myopia may cause prosecutors to send out for testing, even if in the long run it costs Montgomery County more money.

Attorney Paul Kennedy at The Defense Rests adds an additional concern about a possible fix suggested by the local DA:

MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

For the reasons mentioned above, I understand why the DA would want to subsidize the lab. But I agree with Kennedy it's problematic to rely on asset forfeiture funds for any government entity's base budget. Back when Texas used grant money to prop up dozens of regional narcotics task forces around the state, many of those local entities used asset forfeiture funds to pay for local matching under their grants, leading to skewed enforcement priorities.

Grits' view: By the time you add in additional jail costs from delays, the county in most cases is still better off paying to process cases more quickly. Balking at a $300-$400 fee seems foolhardy when the result is $40-$50 per day extra jail costs for up to nine months. (The phrase "penny wise, pound foolish" comes to mind.) The criminal justice system is just that, a system, with a lot of moving parts, so one can never look at cost figures like this in isolation. It's common for "savings" in one part of the system to result in even greater costs elsewhere. So federal subsidies are nice, but if Texans want a massive criminal justice system that, at any point in time, supervises more than 3/4 million adults in prison, jail, on probation and on parole (roughly the population of Austin), then paying for ancillary services like crime labs is an unavoidable expense.

Kennedy suggested three takeaway lessons from the episode: "First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity  is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime." That pretty much sums it up.

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.

Diversion program reduced new prisoner numbers from revoked probationers

There's good news and bad news in a new report (pdf) detailing the effects of diversion grants to local probation departments from the Texas Department of Criminal Justice (TDCJ), authorized by the Lege since 2005: The good news is it worked where agencies accepted the grant money. Those local probation departments (CSCDs) reduced felony technical revocations by 14.5% and felony revocations overall by 3.6%, despite their caseload going up by 8%.

But those effects were mostly counteracted by an array of smaller agencies who declined the grants, stuck with their old ways and increased both technical revocations (6.9%) and overall felony revocations (9.1%) over the same period. The overall result, then, was minimal - about a 1% reduction in felony revocations since 2005. That's not bad with probation rolls swelling, but not all that was hoped for, either. Statewide, "In FY2011, there were 23,881 felony revocations to TDCJ, of which 48.5% were a result of technical violations of community service conditions." A little more than a third (36%) of those revoked for technical violations were absconders.

Also, the goal of reducing probation caseloads has not been achieved and fears that declining probation rolls would reduce state funding for local probation departments as a result of grant incentives never materialized. "The felony direct community supervision population increased 8.0% from August 31, 2005 (157,914 offenders) to August 31, 2011 (170,558 offenders)." While the incarceration rate is declining, the number of probationers in Texas is keeping pace with population growth, seemingly unswayed by crime declines over the last decade.

Even so, the grant program did achieve its goal of reducing felony probation revocations to prison. Bottom line: "more felony offenders were under community supervision in FY 2011 than in FY 2005, but fewer offenders were revoked to TDCJ during the same period. CSCDs that did not receive additional diversion funding showed increases in felony revocations to TDCJ."  In other words, agencies that took the diversion funding simply began revoking a lower proportion of the probationers they supervised: "The percentage of offenders revoked within two years of placement decreased from 76.9% in FY 2005 to 67.4% in FY2009 in CSCDs receiving additional diversion funding."

There were a couple of counties that took the money but never seriously tried to achieve the goals of diversion funding. From 2005-2011, felony revocations increased 79.5% in Bexar County (San Antonio) and 99.6% in Collin County (McKinney). Without their bad examples, the results from counties that took diversion funding look even better.

So the idea of using financial incentives to local government to reduce state incarceration rates actually worked. The program's effectiveness was mitigated by local non-participation, but the incentive-laden funding structure for the most part functioned as it was supposed to when and where it was applied. (Grits has argued in the past that it would be an even greater incentive if the state eliminated Bexar and Collin's grant funding for noncompliance, but don't hold your breath for that to happen.)

Problem is, too many other factors mitigate in the other direction, causing prison population projections to creep past TDCJ's capacity over the next biennium. Conceived in 2005, this grant program among other new initiatives helped stave off new prison spending over the last several years. But without doubling down on the concept, those diversion programs likely aren't big or comprehensive enough to do much more than they've done already. Instead, the Lege this spring chose a different path, thus ensuring that much of the state-level dialogue over the next two years surrounding TDCJ will come down to a familiar theme: Build more prisons ... or ... what? The other short-term options are increased parole rates, front-end diversion, or going California.

If history is any guide, part of the solution lies in programs like this one that create financial incentives for counties and local probation departments to help the state reduce incarceration costs. Sending someone to prison is easy; helping them stay in the community and reform is much harder. So it requires incentives for locals to undertake the task, but probation departments have shown through this experiment that many of them are willing to try, if given resources and support, and when they do it can reduce the state's incarceration costs.

Budget reduction for Cali drug task forces not comparable to Texas cuts

Long-time readers will recall that in Grits' earliest days ('04-06), this blog focused a great deal on the flaws and fallacies underlying Texas' now-defunct network of regional, multi-county drug task forces financed by the federal Byrne grant program, at least until Governor Rick Perry took away their funding and shifted it toward drug courts, diversion programs, and border security. Indeed, I've suggested in the past that other states should follow Perry's lead. So I was fascinated to learn (via Drug War Rant) that California will soon eliminate state funds for their comparable drug task force network because they can't afford the 25% state match for the grant. Reports the Eureka (CA) Times Standard:

The California Attorney General's Office issued notice to most of the state's 52 drug task forces -- including Humboldt County's -- that it will be pulling its agents and fiscal support effective Jan. 1 due to sharp state budget cuts to the office's Bureau of Narcotics Enforcement.

In an effort to bridge a then-$26 billion state budget gap, the Legislature approved a $71 million reduction to the bureau's $77 million budget next year -- a cut that will trigger the loss of an additional $40 million in matching funds. As a result, the Department of Justice is expected to lay off more than 200 agents before Jan. 1. Humboldt County Drug Task Force Cmdr. Dan Harward expects to be among them.

”Personally, I'm operating under that assumption,” said Harward, who moved his family to the area from Southern California last fall to head the task force.

According to reports, "In a Wednesday statement, Assemblyman Wesley Chesbro (D-Arcata) said the DOJ cuts won't result in the layoffs of any local law enforcement officers, but 'may result in a reduction of coordination between the Attorney General's Office and local law enforcement programs.'" So unlike here, the task forces aren't just going away.

At their height, Texas boasted 53 regional narcotics task forces employing around 700 officers. Counties and local agencies came up with all the matching funds themselves - mostly in the form of employee salaries and asset forfeiture income - while in Cali there seems to be more state infrastructure, which is what's being cut. California Governor Jerry Brown hasn't proposed nearly as radical a fix as that enacted under Rick Perry, who redirected all the federal Byrne grant money to other areas. They're only eliminating the state's portion of the matching funds, leaving the task forces to operate on their own. By comparison, Gov. Perry first signed legislation to increase supervision by the state of drug task forces, only eliminating their funding when they proved  essentially ungovernable.

So rather than following in Texas' footsteps, in a way California is now devolving to what Texas was doing in the pre-Tulia era, when regional task forces operated with no practical state supervision. With Cali already facing an overincarceration crisis replete with federal court orders to reduce the nonviolent prison population, Governor Brown would do well to follow Rick Perry's lead, shifting Byrne money entirely from low-level drug enforcement to fund treatment, diversion and alternative sentencing instead of just reducing task forces' accountability.

Records of PD receiving COPS grant seized by DA, Texas Rangers

The other day Grits mentioned that the City of Patton Village - a small municipality of about 1,500 people in Montgomery Couunty - was one of just a handful of Texas jurisdictions to receive a federal COPS grant to hire a new police officer. (The grant pays for salaries and benefits for the officer for three years.) So I was interested to notice soon thereafter a story about the local DA's office and the Texas Rangers executing a search warrant and the Patton Village Police Department. Reported the East Montgomery County Observer (Oct. 6):

Representatives of the Montgomery County District Attorney’s Office served a search warrant at Patton Village city buildings on Oct. 4 confiscating boxes of documents.

“We are executing search warrants on city buildings to collect various city records based on allegations of misappropriation of city funds,” said Phil Grant, head of the DA’s Public Integrity Unit.

Grant said he cannot comment on what city officials may be targeted in the investigation but noted that records are being searched both at city hall and the Patton Village Police Department.

“This will be ongoing for some time,” he said. “It will take several months for us to accurately review all the records we’re obtaining today.”

Grant said the seized papers will be submitted for forensic analysis. Officials primarily looked for business records to review them for possible illegal activity, he said.

A local TV station reported that, "While the police department continued its patrols Tuesday, the rest of the offices were shut down as the DA's office tries to answer the question of whether or not anyone there misused city funds."

I find it ironic that only five Texas PDs out of 149 requesting COPS grants received them, and almost immediately after they're announced one of the agencies has all its records seized by law enforcement investigating corruption charges. I'm not saying the two things are related: News reports about the raid on Patton Village institutions so far have been awfully vague. It's rather odd, though, for the town to be selected for a much-sought federal grant then see the town's records, including the police department, seized in an investigation over alleged misuse of funds.

Yesterday Grits argued that the proliferation of small police agencies creates problems and that the public would be best served by consolidating law enforcement agencies instead of expanding their number by an average of 15 per year. Examples like this only reinforce this blogger's view.

COPS grants violate principles of federalism

The US Justice Department awarded Houston PD a three-year COPS grant for 25 new officers, paying for their salaries and costs for three years before the city will be expected to pick up the tab. The Missouri City PD received funding for four new officers, Huntsville PD got money for two, and the City of Patton Village and Waller County Constable Precinct 2 got one apiece.

Those were the only Texas grants among 238 local departments nationwide that received funding. See the complete list (pdf). By my count, 149 Texas agencies applied for the grants, which gets Texas a 3.4% approval rate. (See the list  (pdf) of applicants.) Nationwide, 11.3% of the 8,999 total positions requested were filled. "The grants provide 100 percent funding for the entry-level salaries and benefits of newly-hired, or rehired, full-time officer positions over a three-year period."

Regular readers know Grits is no fan of the COPS program. It violates principles of federalism for the feds to subsidize local law enforcement costs, plus commits the agencies receiving the grants to living beyond their means, since they'll have to come up with money to pay for the new positions when the three-year grant is up. In addition, the overwhelming majority of departments preparing grant requests are wasting administrative staff time and resources on grant applications that around 97% of them will never receive.

See related Grits posts:

• COPS grants skew local budget decisions: Eliminate them as part of federal deficit reduciton
• Do COPS hiring grants make sense in a lousy economy?
• Another part of Obama's stimulus the Governor should oppose
• Texas shortchanged on COPS grant funding 
• Obama shouldn't waste stimulus money on Byrne grants
• The Wimpy Approach to funding local police: Federal COPS grants

Lies, damn lies and border security rhetoric: New study aims to fabricate fear

In order to justify massive amounts of border security pork and to bolster the Governor's anti-immigration bona fides, since 2006 the Governor and his former homeland security director Steve McCraw, who now leads the Department of Public Safety, have consistently overstated the amount of crime in border counties, raising the spurious specter of "spillover" violence from the cartel wars in Mexico onto the US side of the river.

In reality, any close observer of border realities knows that the real "spillover" of violence along the border is in the other direction, with Texas-based prison gangs like Barrio Azteca serving as soldiers and assassins for feuding drug cartels. In rare moments of candor, DPS officials have told the Legislature that in many cases "command and control" of cartel activity has shifted to the US side, with cartel leaders themselves seeking safety from the chaotic and violent environments south of the Rio Grande.

So I wasn't surprised to see that DPS and (for some reason) the Texas Ag Department teamed up to hire two big-name ex-generals, including former Clinton-era "Drug Czar" Barry McCaffrey, to perform an anecdote-driven security study (pdf) released last week which contradicts all available data about crime on the US side of the border to falsely claim that violence on the American side poses as great a threat as in Mexican border towns. Reported the Austin Statesman ("Report cites anecdotes to claim spillover violence," Sept. 27), despite claims by the generals that South Texas has become a war zone:

Federal crime statistics from cities and counties along the Southwest border have not shown spikes in violence, and last year the Congressional Research Service found that FBI statistics do not indicate whether there has been spillover from the violence raging in Mexico. Officials along the border have presented differing accounts of drug cartel-related violence.

Indeed, the sourcing for the most serious allegations in the report turns out to be unbelievably sketchy:

During a news conference after the report was released, McCaffrey raised eyebrows when he spoke of "hundreds of people murdered on our side of the frontier," a statistic that far exceeded the 22 killings between January 2010 and May 2011 identified by the Department of Public Safety as being related to drug cartels. When asked about the number, McCaffrey pointed to statements from a Brooks County rancher, who told reporters that hundreds of bodies had been found in the county in recent years.

Most of the bodies were those of illegal immigrants crossing the brush trying to avoid the U.S. Border Patrol checkpoint in Falfurrias and not victims of direct assaults, according to the Brooks County sheriff's department.

So the bulk of US side deaths McCaffrey attributes to drug cartels a) stem from failed attempts at illegal immigration, not the drug war, and b) weren't actually murders according to law enforcement. Such obfuscations are regrettable if not surprising, as border security issues have become highly politicized. The Statesman reported:

The issue of spillover violence has increasingly pitted Republican lawmakers and leaders, including Gov. Rick Perry, against President Barack Obama's administration.

"Our pleas for help are being met with denial and lame jokes," Texas Agriculture Secretary Todd Staples said Monday. "The threat grows more violent every day, and more resources are needed."

In May, Obama traveled to El Paso and declared the border more secure than ever, accusing Republicans of using the issue of border security to delay discussion of immigration reform.

"Maybe they'll say we need a moat," Obama said at the time. "Or alligators in the moat. They'll never be satisfied."

Earlier this month, Perry blasted Obama during a presidential debate as either having poor "intel" or being an "abject liar."

But since law enforcement sources support President Obama's interpretation of what's happening on the border instead of Rick Perry's, McCaffrey and Co. relied on anonymous sources that blatantly contradict the law-enforcement interests who've received tens of millions in border-security grants from the governor. Apparently those folks are credible when it comes to doling out pork, but are all fibbing when they report the number of murders in their jurisdictions. How much sense does that make?

Anyone familiar with McCaffrey's record as Drug Czar won't be surprised by such fabrications. Indeed, as Drug Czar he was literally statutorily obligated to mislead the public about the drug war. Apparently old habits die hard.

Short-term grants create artificial demand for prosecutor, law-enforcement slots

This blog has been critical of federal COPS grants that encourage law enforcement to hire extra police officers by paying their salaries the first three years, expecting locals to pick up the tab after that. The program encourages departments to overspend on staff that their tax base can't afford in the long term, artificially boosting budgets and forcing tax hikes if the positions are kept on. Even so, given police union pressure and the fear of being called "soft on crime" those slots are usually retained, with taxes commensurately raised to foot the bill. With tax revenues dramatically down, though, and local governments facing a tight budget squeeze, such reflexive acquiescence to grant-driven policy incentives is no longer automatic.

Dallas County is facing a similar dilemma over grants used to fund extra family violence prosecutors, which run out this budget cycle. Reports KERA-TV:

The Family Violence Unit in the Dallas County District Attorney's office could take a hit when County Commissioners approve a new budget tomorrow. KERA's BJ Austin says state grant money is running out, and the county can't pick up the cost.

In the Family Violence Intake Unit of the D-A's office an assistant district attorney works with police, files felony domestic violence cases, and presents them to the grand jury. An investigator does that in misdemeanor family violence courts, and a legal secretary helps family violence victims get protective orders and otherwise navigate the legal system.

Officials with the District Attorney say the loss of these three jobs will make prosecution of domestic violence cases much slower. Brandy Smith, with the Brighter Tomorrow's shelter in Grand Prairie says that would not be good for victims.

Smith: When things take too long, they lose their nerve. They sometimes might not follow through. ...

County Commissioner Mike Cantrell says 100 million dollars in state and federal grant money for many county jobs is running out. And there's no way the county can afford to keep those positions. ...

Cantrell suggests the District Attorney look at his Hot Check Fund or Forfeiture Fund to see if he can find money to save the Family Violence jobs.

Such grants skew local budgeting decisions while discouraging using discretionary money - like the hot check and forfeiture funds - to fulfill local needs. Budget crises have a way of clarifying priorities: If Dallas County wants more prosecutors than it's budgeted, commissioners must pay for them. If they choose to prioritize spending in other areas, like fixing problems at the jail, repairing roads, public health, etc., such decisions are the essence of what budgetmaking is all about. Naturally every politician would like to be all things to all people, but taxation is the main, limiting factor. These grants allowed politicians to avoid those limits, temporarily, but eventually local taxpayers must pony up, or else hard decisions must be made.