Gitting tuffer on plea deals boosting McLennan County Jail costs

The changing of the guard at the McLennan DA's Office (Waco) in 2010 appears to have resulted in an overcrowded, over-budget county jail as the new District Attorney rejects more plea deals, forcing defendants to wait in jail longer, judging from a Waco Tribune Herald report this week ("McLennan County Sheriff out of money for prisoner overflow," March 21, behind paywall). The Sheriff has requested emergency funds for the jail, blaming "the rapid spending on an unexpected and prolonged increase in the county’s jail population." Reported the Trib:

[Sheriff's Captain Paul] Wash said when the sheriff’s office prepared its current budget last spring, the county on average was housing 30 to 40 inmates each day at Harwell.

But by the time the commissioners court approved the budget in August, the inmate population at the county jail started climbing. In the fall months, the sheriff’s office sent an average of 175 to 200 inmates to Harwell [a privately run facility where the county must pay by the head].

The county had 130 inmates at Harwell as of midnight Monday. Plemons said the county jail had only 28 vacant inmate beds.

The Sheriff's office couldn't give a definitive cause, citing classification issues (male/female, violent, non-violent) sometimes creating inefficient allocations. But Wash said the main problem is quantitatively more inmates housed at the jail, stemming either from "an increase in arrests made by law enforcement agencies throughout the county, or [else] fewer inmates are being offered or accepting plea deals, thus staying in jail longer while awaiting trial," the paper reported.

The data isn't available yet (to me, anyway) to tell for sure, but Grits believes DA decision making and policy changes are the more likely cause of extra inmates than increased arrests. After all, crime statewide has been declining and Waco is among the cities that saw a massive drop in traffic enforcement by local police in 2011, with municipal courts processing just under 14,000 traffic cases in 2011 compared to 19,582 in 2010. That's more than a 28% drop. Since so many arrests on other charges originate at traffic stops, it seems unlikely there were significantly more arrests in McLennan County in 2011 with traffic tickets down that much and overall crime trending downward. Indeed, just last year the same reporter was lamenting declining inmate numbers at the jail and exploring the cause of lower crime rates to explain them.

Instead, it's far more likely changes in plea bargaining stances by rookie DA Abel Reyna account for the biggest difference. There was a report just last month about  the DA's office implementing a strict policy on DWIs that caused Reyna's former law partner Damon Reed to predict rising costs for the county:

Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

Now we see it's not just court dockets clogged as a result of this and similar plea-bargain policies but also the county jail. If the DA is negotiating fewer plea deals with DWI (and presumably other classes of) defendants, no wonder the jail population is rising! Moreover, the timing of Waco's jail population rise coincides roughly with the new DA's changes in plea bargaining policies.

In fact, the McLennan DA's example is almost a case study of tuff-on-crime policies equating directly to getting tuff on the taxpayers, with little identifiable public safety benefit. Jails and criminal justice generally are behemoths in county budgets, and small policy changes can have big budget consequences. Whether county commissioners, reporters or for that matter McLennan County voters make the connection is another matter. But those who want to avoid county tax hikes should dislike Reyna's new plea policies based on budget considerations unless a stronger case can be made that increased pretrial detention boosts public safety. In most instances, certainly on routine DWIs, the cost-benefit analysis just isn't there to support it.

Overcriminalization Folly of the Week: Felony driving without a license

Grits went to read an important new US Supreme Court opinion (pdf) out this week, Missouri v. Frye, related to whether a plea deal never submitted to a client by his attorney was grounds for post-conviction relief because of ineffective assistance of counsel. It's an interesting question, but I did a double, then a triple take when I read the opening lines describing the underlying case in the opinion, then couldn't get past it: "Respondent Frye was charged with driving with a revoked license. Because he had been convicted of the same offense three times before, he was charged, under Missouri law, with a felony carrying a maximum 4-year prison term."

Huh? A max four-year prison term for driving without a license? Even for the fourth offense, that seems extreme. According to this source, actually, in Missouri it's a felony on the third offense. That seems borderline totalitarian - "Show me your papers, comrade, or I'll slap you in prison for four years." Yikes! You can fill up a gulag pretty darn quickly that way! Even with that extreme penalty, though, one in ten Missouri drivers have no license.

This is overcriminalization run amok. With incarceration costs running in the $20,000 per year range, it'd be a lot cheaper to remove barriers to licensure and spend the money you would have spent on prosecution and incarceration to give out free bicycles and bus passes. The absurdist cost-benefit analysis behind making driving without a license a felony worthy of prison time boggles the mind.

Plea deals without open files turn off ignition on adversarial system's truth-seeking engine

An exchange between judge and defendant during a guilty plea out of Williamson County in a remarkable, 33-year old murder case caught Grits' attention.

Benny Tijerina was sentenced to concurrent 40 year sentences in Williamson and McLennan counties for the crimes, though he claims and a victim's mother agrees that another man was the shooter (the prosecutor claimed to have jailhouse informants who say otherwise). Anyway, as cold cases solved by DNA go, this was at once both a remarkable and increasingly a routine event.

What caught Grits' eye was an exchange recorded at the end of the Austin Statesman story: "After he was sentenced, Tijerina asked [Judge] Carnes why he hadn't been allowed to see any of the evidence against him in the case. Carnes said that was standard and that Tijerina would only have seen the evidence if the case had gone to trial."

That's true as far as it goes under the US Supreme Court's Brady v. Maryland ruling, but it's also a "standard" that shifts in Texas county by county at the whim of the local elected prosecutor. In Tarrant County, for example, defense attorneys have access to prosecutor files - electronically, no less - even in cases that result in plea agreements. In El Paso, too, DA Jaime Esparza told a conference at the Task Force on Indigent Defense that his office allows defense counsel to get access to case files within 24 hours, noting that it facilitated more routine cases getting disposed of within three days or less, reduced jail costs, overcrowding and liability, relieved court dockets, and even freed up space in the jail that's now leased out to house federal inmates and make extra money.

We live under a justice system where 98% of cases result in plea bargains instead of trials. Under the Williamson County rule, in the overwhelming majority of cases nobody outside the prosecutor's office ever actually vets the evidence before a sentence is dispensed. If the adversarial system is a truth seeking engine, in 98% of felony cases the engine's ignition switch remains locked in the "off" position under that "standard."

According to the Texas Office of Court Administration's annual report (pdf), "Less than two percent of all criminal cases (excluding transfers and motions to revoke probation) went to trial in 2010" in district (felony) courts. Just 3,633 felony cases in FY 2010 went to either jury or bench trials, says OCA. So in the overwhelming majority of cases, under the Williamson County system, the defense never sees the evidence.

I have no knowledge of the case beyond this report from the Statesman and don't argue with the sentence(s), but that exchange between defendant and judge about what is "standard" in Williamson County - and too many other Texas courtrooms - should raise alarm. The same sort of prosecutorial gamesmanship takes place in more routine cases all the way down to the misdemeanor level. Make Grits philosopher-king and I'd prefer that, as in El Paso and Tarrant, both sides had full access to the police investigation as early in the process as possible. Clearly some DAs - like Williamson's John Bradley - just won't do that unless they're required, so in the interests of justice the Legislature should make them.

McLennan DA implements 'one size fits all' DWI deals, but a deal takes two

In Waco, McLennan County DA and John-Bradley wannabe Abel Reyna has implemented a new policy for first-time DWI defendants that "prohibits DA assistants from negotiating plea deals and sets probationers up for failure with higher fines and related fees," according to a story forwarded to me by a reader by Tommy Witherspoon at the Waco Tribune Herald ("DA's DWI policy under fire from area attorneys," Feb. 19, behind paywall).

Remarkably, "The policy is so unpopular that attorney Damon Reed, Reyna’s former law partner, asked a judge last week to order the district attorney’s office into mediation with Reed’s 23-year-old DWI client because of Reed’s perception that the district attorney’s office won’t negotiate or treat defendants fairly." A judge denied the motion, but attorney Damon Reed, who is Reyna's former law partner, criticized new DA's approach as a "one size fits all" policy. Reported the Trib:

Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

“The point of it is so the district attorney can look like he is tough on crime and the judges will artificially appear that they are being soft on criminals if they take into consideration any of the circumstances of the individual in shaping justice for that individual.”

Reyna said he has set a standard offer of 15 months probation and $1,000 fines for those charged with their first DWI. Offers are higher if there are aggravating factors, such as an unusually high breath or blood-alcohol test, causing a wreck or being belligerent to the arresting officer.

The maximum penalty for a first-time DWI is two years in jail and a $2,000 fine.

Regular readers know, of course, those only include the criminal penalties. There is also a civil surcharge, which for DWI defendants can be quite high and have caused a decline in the DWI conviction rate statewide.

The issue is, at what point do penalties become so severe that defendants would prefer to just sit out their sentence in the county jail than agree to probation, which is what happened in Harris County when the previous DA, Chuck Rosenthal, tried to turn up the screws. And as attorneys in the story pointed out, a big part of the problem is expensive DWI "surcharges," as well as probation fees, costs for treatment, urinalysis, any required classes, etc.:

Reed and other attorneys say a typical DWI defendant placed on probation will incur fines, probation fees, state surcharges and possibly other charges that easily can total $500 or more a month.

“If I slap a poor man 20 times to get his attention, I guarantee you I had his attention after the first time,” Waco attorney Mike Roberts said. “If I give him a fine he can’t pay, it is not in the best interest of justice because he is not going to be able to pay it, you are setting him up to fail and the taxpayers will have to pay to keep him in jail and to pay for more jury trials. It is nothing more than political posturing.”

Will defendants in McLennan County pay through the nose, or will this result in clogged dockets, demands for trials, or even pleas to jail sentences? I suppose, looking at it through the prism of local politics, at least that last option would provide some extra bed days for these guys, which a cynic might imagine could even be the point.