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Date: Monday, 15 Sep 2014 10:19
The justification for mass incarceration has always been public safety. But this new analysis from the Pew Charitable Trust shows that "higher threats of incarceration don't actually deter criminal activity." Indeed, states which reduced incarceration rates saw similar or even greater reductions in crime from 1994 to 2012 than those that expanded their number of prisoners. For example, New York State reduced its incarceration rate the most over this period (by 24 percent) but also saw the largest reduction in crime. Meanwhile the state with the greatest rise in incarceration rate (percentage-wise) was West Virginia, which expanded its prison population by 195 percent while it was the only US state to see crime INCREASE over this period.

RELATED: On my "to read" list is a new, seemingly exhaustive analysis by the National Academy of Sciences (published in May) titled "The Growth of Incarceration in the United States: Causes and Consequences" (pdf). It's a fat tome but delves deeply into the substance of why crime reduction and mass incarceration seem at best tenuously linked and explores other theories and factors that may explain the counter-intuitive data.
Author: "Gritsforbreakfast (noreply@blogger.com)"
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Date: Monday, 15 Sep 2014 09:44
A Sheriff's deputy in Wise County has been arrested in a bizarre incident. Sgt. Chad Hightower told sex offenders the state now required him to photograph them nude. He even told one fellow he must achieve an erection for the photo shoot, which took place in the police impound yard. Unreal.

Apparently similar photos were found on the deputy's camera involving other sex offenders, which to me indicates how easily this powerless population may be manipulated and abused. They've been stripped of so many rights, subjected to so many degradations, that it's near-impossible for a layperson to judge the legitimacy of such demands and requires tremendous courage to confront abuses.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "sex crimes, sex offender registration, W..."
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Date: Monday, 15 Sep 2014 09:35
Austin pays our cops too much, has too many of them, and most of our city council is in the pocket of the police union. So thanks to Bill Spelman and Laura Morrison for at least trying to inject reason (and math) into the city's dysfunctional budget discussions. Reported the Austin Chronicle:
"public safety" (police, fire, EMS) will consume 70% of next year's $854 million GF budget (even excluding municipal courts), with APD alone representing 42%. Parks and libraries (generally cut first in lean times) together consume 13%; and Health and Human Services (contributing at least partly to "public safety") is another 6%. That's quite nearly everything – and it also bears emphasis that the public safety portion continues to grow, a trend that is literally unsustainable.

Unless, of course, we're prepared eventually to spend our money on police, fire, and emergency services, and nothing else. Failing that, Spelman's hoping that come 2015, at least some of the incoming Council members will realize that while public safety might be a sacred public obligation, public safety spending is not necessarily a sacred cow.
Author: "Gritsforbreakfast (noreply@blogger.com)"
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Date: Monday, 15 Sep 2014 09:30
Texas' warrantless blood draw statute has been challenged and in some cases declared unconstitutional by intermediate state appellate judges in the wake of the Supreme Court's 2013 McNeely decision.  Tyler's 12th Court of Appeals became the latest to contend "the implied consent and mandatory blood draw statutory schemes found in the transportation code are not exceptions to the warrant requirement under the Fourth Amendment."

Another pro-Fourth Amendment opinion from a Texas appellate court on the topic came in July from the Fourth Court of Appeals in San Antonio, ruling that "warrantless searches are presumed unreasonable and must be justified on a case by case basis."

The SA Express News editorialized recently that the Court of Criminal Appeals should pick up a case to clarify the issue, and at some point they surely will. But if they go against the lower courts and uphold the current statute, we might see the issue challenged again at SCOTUS.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "DWI"
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Date: Sunday, 14 Sep 2014 10:13
According to this list on the Attorney General's website, there have been 3,680 peole who've died in custody of state and local law enforcement in Texas since 2005, which seems like a remarkable number - roughly one per day. Nearly half the deaths happened in TDCJ units. Here's an excel file with a list of the deceased.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "Attorney General, death-in-custody"
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Date: Sunday, 14 Sep 2014 09:04
Former TDCJ flak Michelle Lyons saw her wrongful termination lawsuit against the agency reinstated last week after the 5th Circuit Court of Appeals overturned a summary judgment ruling by the trial judge. Readers may recall Lyons was accused of lying on her time sheets. But, reported the Huntsville Item (Sept. 10):
The circuit court said the lower court and TDCJ did not mention evidence that could have led a jury to favor on Lyons’ side. That evidence was a statement by Lyons’ then-supervisor Larry Fitzgerald, who retired in 2003.

“I explained to Ms. Lyons that since she was an exempt employee she was not eligible for overtime,” Fitzgerald said in part of his affidavit. TDCJ said Lyons’ inaccurate timesheets led to her demotion in 2012. “Therefore, it was not necessary for her to track her hours to the minute on a day-to-day basis. I also explained to her since she was an exempt employee it was not necessary for her to work a set shift.”
Fitzgerald explained that this was because of the erratic hours public information officers worked. Rather than minute-by-minute timekeeping, Fitzgerald told Lyons she was responsible for working a minimum of 40 hours per week and to mark her records for “eight hours in the office per day.”
The circuit court said that a “reasonable jury,” along with evidence showing her co-worker also failed to follow the timesheet policy, could conclude that public information officers were an exception to the rule. The court said that should’ve been debated by a jury.
If proven true, the court also said that could be seen by a jury as the “selective application of a facially neutral policy.” In other words, if the policy was equally applicable to all employees as TDCJ claimed, why were public information officers treated differently and why was Lyons treated differently than her co-workers?
But the court also said there is a factual question as to whether the timesheet violations were “the actual reason for her demotion or a pretext, TDCJ was not entitled to summary judgment.”
On the final question, there's very little doubt Lyons' firing over time sheets was mere pretext. She was public information officer at an agency which over the years has become more insular and opaque and, at root, would prefer the public had as little information about it as possible. As far as I can tell, she was fired for doing her job. Now perhaps a jury will get to decide. Or perhaps TDCJ will settle to prevent Ms. Lyons from taking the stand and revealing where all the (metaphorical) bodies are buried.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "civil rights lawsuits, Media, TDCJ"
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Date: Sunday, 14 Sep 2014 08:24
It's always nice to see good ideas spreading. The US Attorney in Washington, D.C. is creating a conviction integrity unit modeled on Dallas DA Craig Watkins successes in Dallas and a similar unit in New York. Reported MyFoxDC (Sept. 11):
U.S. Attorney Ron Machen has decided to take a bold step in creating a unit that will investigate cases his prosecutors have already taken to court. Cases in which troubling questions may emerge post-conviction like the discovery of DNA, a bad witness or even a false confession.

Over the last four years, the U.S. Attorney's Office has investigated more than a hundred cases in which hair and fiber analysis played a role in convictions.

Five men had their cases thrown out when the evidence used against them turned out to be false. The latest being Kevin Martin, who served time for a murder he did not commit.

"Anytime that happens, it's a prosecutor's worst nightmare,” said Machen in an interview Thursday. “Our job, our mission is to punish the guilty, but protect the innocent, and if innocent individuals have been wrongly convicted, it's our job to do the right thing.”

So the District's top prosecutor has designed a unit that will be staffed with a veteran assistant U.S. attorney, who along with defense attorneys, will look at cases that have developed troubling questions after defendants have been found guilty.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "Innocence, post-conviction writs, USDOJ"
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Date: Saturday, 13 Sep 2014 18:06
Two Dallas men convicted of the 1999 murder of a Dallas pastor are seeking to be declared innocent, or at least receive a new trial, "on the basis of new DNA evidence and a trial they say was tainted by false evidence knowingly presented by prosecutors." Reported the Dallas News, "the two men were convicted on testimony from jailhouse informants and an unrecorded confession."

Whether or not the DNA proves them innocent, it's pretty clear prosecutors withheld exculpatory evidence. When the DA gave attorneys with the Innocence Project of Texas and the national Innocence Project their case file:
attorneys found letters from the inmates who had testified that they’d heard the two men admitting the murder.

During their court testimony, the informants said they had not been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the state in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while “insisting” to jurors “that no such discussions with these informants had ever occurred.”

The two jail informants have now told the defense attorneys their testimony was false, the filing says.
The Michael Morton Act passed in 2013 required prosecutors to make such evidence available to the defense before trial, but clearly to deal with older cases there should probably be some sort of post-conviction discovery available in habeas proceedings. If Dallas DA Craig Watkins' office hadn't voluntarily opened up its files in this case, the underlying prosecutorial misconduct would never have been discovered.

It's also worth mentioning that the original case relied heavily on jailhouse informants, but if the case were retried today that testimony would have to be corroborated. Texas law didn't include such a requirement until 2009 when state Sen. Juan "Chuy" Hinojosa passed a corroboration mandate for jailhouse snitch testimony.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "Brady violations, Dallas County, Discove..."
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Date: Saturday, 13 Sep 2014 14:16
Although corporations are presumed to be people when it comes to campaign contributions, per the US Supreme Court's Citizens United ruling, they are not the sort of people who go to prison when they break the law.

Por ejemplo, if you or I were found to have engaged in "illegal distribution of controlled substances," spurring a a US Attorney to publicly avow our actions were a "threat to public health and safety," one would certainly expect serious prison time. But, for CVS and HEB pharmacies, who allegedly sold drugs to an unlicensed doctor, the result was a stiff fine: "CVS Pharmacy, Inc. paid a civil penalty of $1,912,500 on Thursday, while H-E-B paid $262,500 in early August to resolve the alleged violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970," reported the Houston Chronicle ("HEB, CVS, pay more than two million in drug penalties," Sept. 5).

This pattern became apparent after the 2008 financial scandals: Crimes by corporations result in civil settlements that would never be available to  an individual defendant in lieu of, say, a plea bargain.

(On the flip side, the justice system seems to offer little recourse when corporations are victims of major crimes, only minor ones. A shoplifter, they can arrest; the hacker who steals millions of credit card numbers from Target is virtually untouchable.)

To be clear, I'm not calling for HEB nor CVS to be prosecuted further, nor for any individual in the company to face prison time. The deal is done. Perhaps instead, though, the same civil settlement approach should be available to other "people" who are not, like corporations, legal fictions designed to distance owners from personal liability? What's good for the goose ...

RELATED: From The Consumerist (Sept. 12): "How corporations got the same rights as people but don't ever go to jail."
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "corporate crime, Drug Enforcement Agency..."
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Date: Friday, 12 Sep 2014 11:33
In the wake of a national frenzy over the video of an NFL star punching his wife, we learn that Texas ranked 16th in the number of females murdered by men in single victim/single offender homicides, according to a new report by the Violence Policy Center titled, "When Men Murder Women" (pdf, see Appendix 1, pp 9-10). Alaska topped the chart at 2.57 such murders per 100,000 women, followed by South Carolina (2.06), Oklahoma (2.03), Louisiana (1.92), and Mississippi (1.89). The lowest rate was in New Hampshire at .30 per 100,000 women.

Based just on the raw numbers in this report, Texas had the second highest total number of such killings after California, which makes sense since they're the two most populous states. In 2012, California had 18.4% more women murdered by a single male offender than Texas - 212 compared to 179. But because the Golden State's population is so much greater, California's per-capita rate is lower - 1.11 per 100,000 women in 2012 compared to 1.37 in Texas (i.e., Texas' per-capita rate is 23% higher than California's, which was tied for 27th).

Sixteenth isn't great - New Jersey is ranked 33rd, for example, and the per-capita rate there is only .90 per 100K. But this is one list where I'm relieved to find my home state isn't leading the pack.

Via the Texas Legislative Reference Library.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "family violence, murder"
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Date: Friday, 12 Sep 2014 08:07
On Monday, Eric Nicholson of the Dallas Observer followed up this Grits post with his own reportage, including quotes from your correspondent, regarding the (to me, non)debate over whether warrants are required under current Texas law for police to access historical cell-phone location data.

For some reason, law enforcement interests at the capitol are telling legislative staff that warrants are already required because of the Stickland/Dutton amendment (based on a bill first suggested by the Texas Electronic Privacy Coalition) which required a warrant for cloud-based email and other content. But the legislation didn't reach location data nor other "metadata," as the term has been popularized post-Edward Snowden.

Law enforcement interests took a completely different position when the two bills were in play in 2013. Back then, I can say from first-hand experience, the cops were willing to acquiesce on warrants for email and cloud-based content. But they fought tooth and nail against HB 1608. They ultimately convinced the authors of the bill to which Hughes had amended it - state Sen. John Carona, who lost his primary to Senator-elect Don Huffines, and Rep. John Frullo, who is returning - to strip Hughes' language out of the final version that passed.

So the Legislature did not change the law, which presently allows agencies to get location and other metadata under lesser federal standards or even a subpoena, as is done by the Department of Insurance according to the agency's testimony to a Texas House committee last year.

As the Grits and Observer posts point out, the cops' stance also contradicts recent, on-point caselaw. In Ford v. State, a Fourth Court of Appeals (San Antonio) case delivered in August which found there was no warrant requirement because of the Third Party doctrine. See pp. 16-28 of the opinion for the court's reading of current Texas law on cell-phone location data, which jibes pretty closely with past appellate rulings. (The 14th Court of Appeals in Houston ruled similarly last year in Barfield v. State.) The courts aren't going to fix this and the appellate judges are telling us the Legislature hasn't done so either, yet. No matter what law enforcement is saying to legislative staff, the Stickland/Dutton amendment simply did not reach cell-phone location data; Ford and Barfield make clear that that would require further legislative action.

In many ways, I'm glad TXEPC, of which I'm a proud member, launched our campaign to require a warrant for cell-phone location data in Texas nearly a year before the Edward Snowden revelations. The 107 joint and co-authors who signed onto the bill in the House weren't reacting to some trendy national scandal about the NSA or the Obama Administration, but because they agreed with the concept independently, on the merits. It's true, if Snowden had come forward two months earlier, both bills would have passed instead of just one, as I told Mr. Nicholson. But if we can pick up the warrant requirement for location data (like a bowling spare) in 2015, the effort won't have been in vain. Next week's Senate State Affairs Committee hearing on electronic privacy should give us a better idea of where we stand in the upper chamber.

To prepare for his post, Eric watched the House committee hearing on Rep. Bryan Hughes' HB 1608 back in 2013 (See Grits coverage here and here, or watch the hearing yourself here beginning at the 3:37:15 mark on the video.) He observed, in retrospect: "Watching the committee hearing, it's almost quaint to watch lawmakers grapple with the notion that the cell phone in their pocket is continually transmitting enough data to give anyone crunching it a time-stamped map of their locations and habits. Snowden wouldn't bring the concept of cell-phone metadata to public consciousness for another three months."

My hope is that the warrants for location data bill gets low bill numbers and an early start in both chambers so that stalling tactics can't kill the popular legislation, as happened in 2013. There are other issues on the State Affairs Committee's interim charge list on electronic privacy that aren't as well developed, but in the case of the Hughes/Estes/Hinojosa legislation on cell-phone location data, it's been vetted through the process and is ready to move, if the leadership will allow it.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "cell phones, Fourth Amendment, Judiciary..."
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Date: Thursday, 11 Sep 2014 13:34
Texas' Fourth Court of Appeals in San San Antonio recently ruled that police are not required to obtain a warrant to acquire cell-site location data from a service provider because of the Third Party doctrine.

As the prosecutors' association's weekly case summary put it, the question in Ford v. State was "Did the State violate the Fourth Amendment by acquiring from the phone company, without a warrant, the defendant’s cell phone records that revealed information (tower-pings, outgoing and incoming communication, etc.) connecting him to a murder?"

The court's holding, again from TDCAA: "No. Fourth Amendment protections are surrendered when a person exposes activities to a third party. That exposure makes the records merely business records of the phone company and not protected communications." See pp. 16-28 of the opinion for the court's reading of current Texas law on cell-phone location data.

This is important because law enforcement interests have been telling legislative staff at the state capitol that last year's changes in Texas law to Art. 18.21 of the Code of Criminal Procedure regarding cloud-based email and other content already require Texas cops to get warrants for location data. My response has been 1) it's not true, for reasons evident in the Ford opinion, and 2) if it is true, there's no harm in updating CCP 18.21 to get rid of the outdated language and make the warrant requirement explicit.

MORE: I should have mentioned, they're not the first Texas court to rule this way.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "cell phones, Fourth Amendment, Judiciary..."
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Date: Thursday, 11 Sep 2014 06:38
Here's a one-page summary (pdf) of Texas Department of Criminal Justice's  Legislative Appropriations Request (LAR) for FY 2016-17. There's a request for a ten percent employee raise in the exceptional items - which the Lege must specifically approve as extras - but not in the base budget. (Here's the agency's full LAR, which I haven't had time to examine yet.)

The baseline budget for the coming biennium would cost $6.096 billion in general revenue (GR) funds, $6.252 billion total. But there are several items - from pay hikes for staff to prisoner healthcare, With the exceptional items added in, including raises, the GR total would rise to $6.643 billion, and the all-funds total sums up to $6.799 billion. Here' the list of exceptional items, totaling $546.6 million, from the summary:
  • Ten percent pay raise: $235 million
  • Private prison per diems: $7.7 million
  • 250 halfway house beds: 8.8 million
  • 500 DWI treatment slots: $2.9 million
  • Repair and renovation of facilities: $60 million
  • Probation, basic supervision and treatment: $28.1 million
  • Probation, employer portion of health insurance: $11.3 million
  • Offender health care: $174.8 million
  • Reentry initiatives/transitional coordinators: $4 million
  • Mental health initiatives: $6 million
  • Treatment for remaining ISFs: $5.2 million
  • Office of Inspector General: $2.8 million
Notably, many of those exceptional items are really must-haves, particularly offender healthcare and arguably staff raises (TDCJ can't recruit vs. oil field work and many units are chronically understaffed). Heck, I wish they were asking for more re: reentry, mental health and treatment dollars. The agency always short shrifts those aspects of its mission in favor of funding the institutional side, which as you can see would gobble up the overwhelming majority of extra funds under the agency's plan.

But there are other options available to the Lege besides watching TDCJ's budget spiral ever-upward session after session. Just a few, modest updates to the sentencing structure for nonviolent crimes - adjusting property crime levels for inflation and notching low-level drug crimes down by one penalty category - would allow the Legislature to close several more prisons and use the savings to fund staff raises and offender healthcare. TDCJ will never propose that, but it's really what ought to happen.

When you have the chance to make government smaller and cost less, why not take it?
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "budget, drug policy, employment, Health,..."
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Date: Tuesday, 09 Sep 2014 08:52
Mass incarceration, the practice, has been going on for nigh on three decades in this country. But over the summer, Oliver Roeder at the Brennan Center curiously found that the phrase "mass incarceration" didn't come into popular use until more recently. Here's a summary chart (usage data from Lexis/Nexis):

Fascinating. When I searched Grits' archives, for whatever reason, I found that here, too, the first use of "mass incarceration" was in 2007. Before that, the blog pretty uniformly applied the term "over-incarceration" to the same concept. I couldn't begin to tell you where I picked up the term. By the time Michelle Alexander published The New Jim Crow: Mass Incarceration in the Age of Colorblindness in 2010, the term was in frequent use on this blog.

My guess: Perhaps the term's wider usage stemmed from 2007 congressional hearings titled  "Mass Incarceration in the United States: At What Cost?" Bruce Western used the term in a New York Review of Books article earlier that year. The earliest Grits use I can find was from February 2007 referencing the spread of immigration detention facilities. The first use of the term on the blog was actually by a commenter, Rev. Alan Bean of Friends of Justice, the month before.

¿Quien sabe? Funny how terms creep up on you. Without seeing the data, I wouldn't have guessed the usage was that recent.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "language"
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Date: Tuesday, 09 Sep 2014 08:21
"I want to live in a world where a chicken can cross
the road without anybody questioning its motives."
                                                    - Neil deGrasse Tyson

Transportation laws are outdated, is the message from these recent items:
As more features of automated cars become reality, and companies like Uber and Lyft press the boundaries of available transportation options, it's becoming clear that government at all levels will have to adjust laws to fit tech in much the same way as is happening on Fourth Amendment electronic-privacy questions. The tech is forcing the issue more rapidly than government normally operates.

In Austin, police are arresting Uber and Lyft drivers even as the companies heavily promote their services, their market share is growing, and the city council considers legalizing their currently illicit but popular services.

Meanwhile, the feds are beginning to think about regulating autonomous cars just as they're about to hit consumer markets earlier than most people anticipated.

Two other pieces on autonomous cars emphasize the ethical aspects of coding such vehicles to actually function successfully in urban environments. If your car must choose in a split second which vehicle to hit - the late-model Volvo or a motorcycle with a helmet-less rider - which should it choose?

And the final item highlights a little-discussed aspect of autonomous vehicles operated by sensors: Once broadly implemented, they will generate a terrific cache of data about urban environments. Grits has discussed before how the market for wearable tech depends on finding uses for data generated by sensors, which has meant corrections applications have been some of the most lucrative in the early going. With cars, there are near-endless uses for the data beyond just operating the automobile. Who gets to use it? For what purposes? At what cost?

There are significant criminal justice implications for these tech advances, particularly automated cars. Grits finds these issues surrounding emerging technologies a fascinating example of how judgments about ethics and rights change with context. Just as the arrival of the automobile launched a decline in Fourth Amendment protections, I'm hopeful that emerging personal tech and debates over control of data may end up sparking their renaissance.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "transportation"
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Date: Monday, 08 Sep 2014 18:19
Here's an example why the nativist outcry over illegal immigration and border security in Texas strikes me as a disingenuous, even hypocritical stance for the state to take. Construction everywhere in Texas is booming but, reported the Houston Chronicle ("Low skill jobs hard to fill as Obama considers immigration policy," Sept. 7):
About half of all Texas construction workers are here illegally, according to a report last year by the Workers Defense Project and the University of Texas. In Houston's roaring market, it's particularly tough for employers to scoop up workers. Wages have skyrocketed.

"We don't have a sustainable workforce to do what we need to do right now in Texas," said Gregg Reyes, CEO of the Houston-based Reytec Construction Resources Inc., who said seven out of every 10 of his applicants don't have proper work authorization. "We can only bid on the projects we have people for, and it's a struggle to hire folks to do the work who are legal."
The hotel and restaurant industries say they're also facing critical worker shortages and want some sort of legal status for the workforce that is already here, said Richie Jackson, who heads the Texas Restaurant Association. In parts of West and South Texas, restaurants simply don't have enough staff to stay open every day or serve all their customers, he said. Most industries with unfilled work needs "can just export those jobs. Textiles are made in China, software is created in India," he said. "We can't export jobs. We need to import workers."
And, of course:
In Texas, whose cattle ranches and cotton crops are part of its very identity, 85 percent of the agricultural work is done by people who are here illegally, the Texas Farm Bureau estimates. But as traditional migratory patterns from Mexico has slowed and border enforcement has skyrocketed in the past decade, farmers are finding it increasingly difficult to fill jobs, pitting what was long a solidly conservative element against many Republicans seeking to curb immigration.

"The workforce shortage in the agriculture industry is very real, very chronic and it's impacting our domestic food production without question," said Texas Agriculture Commissioner Todd Staples, a Republican who has pushed to overhaul an agricultural guest worker program and allow a legal conditional status for the workers who are already here.

But many Republicans oppose any form of legalization for immigrants who are here illegally and call it an unfair amnesty for people who have broken the law. They also say many Americans are unemployed and should be the priority.
As long as key sectors of Texas' economy rely on illegal immigrant labor, let's stop this nonsense about deporting millions of people - including half the state's construction workforce and 85 percent of our Ag labor - or refusing to educate their (often American) kids. Talk about cutting off your nose to spite your face!
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "employment, Immigration"
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Date: Monday, 08 Sep 2014 17:13
Texas DPS Col. Steve McCraw had an op ed recently (Sept. 4) in the Dallas Morning News attempting to justify the agency's decision this year to begin collecting all ten fingerprints of driver license applicants and on renewals instead of merely a thumbprint as in the past.

The Colonel claims that "the only reliable way to establish a person’s identity is to collect all 10 fingerprints," which seems an unlikely assertion at best. Think about it: Under what circumstances would collecting 10 fingerprints do a better job of establishing identity than just a thumbprint for the purposes of verifying identity for drivers licenses? If you can imagine such a scenario, please describe it in the comments. After all, somebody who enters the DL center with a severed thumb won't be allowed to swipe the bloody appendage when asked for a thumbprint at the desk.

Bizarrely, McCraw counters concerns that the fingerprints would be integrated into criminal databases, by assuring Texans their fingers will, in fact be entered into those systems:
Some have falsely stated that the fingerprint images obtained at driver’s license offices are used to search an applicant’s criminal history — but this is simply not true. The state’s Automated Fingerprint Identification System is a fingerprint identification database; it can only be accessed for investigative or statutory purposes. Without 10 prints to integrate into the system, there are major gaps in public safety that leave law-abiding citizens vulnerable to identity theft and other schemes of criminal operatives.
This argument is a red herring. Nobody has said the fingerprints would be used to run criminal histories (which can be done by name); the complaint is that they'd be uploaded into the same database as criminals, which he admits they will.

The purpose of AFIS is identifying bad guys. Entering the fingerprints of every Texas driver does nothing to protect people from "identity theft," it just means their prints will be run against prints retrieved from crime scenes by police investigators, even if they've never been arrested. State Rep. Ron Simmons, a defender of the agency on this subject, was more honest with the public on his website which openly admitted, "All applicant fingerprints are run against the Texas unsolved latent print file, which is comprised of statewide crime scene fingerprint evidence."

The Colonel also overstated the extent to which state law expressly authorized this change. In 2003, the House of Representatives had a very specific debate on whether to collect all ten fingerprints and the idea was defeated 111-26. Then in 2005, the Lege said they could collect thumbprints or fingerprints, based on the argument that someone with missing or damaged thumbs may not have prints. But stretching that to claim authority to collect all ten after the 2003 vote takes chutzpah. This is a new interpretation that does not jibe with legislative discussions at the time the law was passed.
All applicant fingerprints are run against the Texas unsolved latent print file, which is comprised of statewide crime scene fingerprint evidence - See more at: http://www.ronsimmons.com/dps_dl_10_print_information/#sthash.hdA3a2n0.dpufAll applicant fingerprints are run against the Texas unsolved latent print file, which is comprised of statewide crime scene fingerprint evidence - See more at: http://www.ronsimmons.com/dps_dl_10_print_information/#sthash.hdA3a2n0.dpuf"

The Legislature really should step in next session to put a stop to this and order all but thumbprints expunged, which was without doubt the legislative intent back in 2003 and 2005 when the relevant statutes were passed. There could be a bill to that effect, or perhaps they could attach a budget rider forbidding the agency from spending money on their drivers license database if they collect more than one print per driver.

Clearly McCraw is feeling heat and felt the need to defend the policy, but this was pretty weak. If the Tea Party folks want to have any credibility with their small-government base, one would expect this Big Brotherish maneuver to come under attack when the 84th Texas Legislature convenes in January. There are bipartisan reasons to object to this and I suspect a coalition could be cobbled together to end it.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "DPS, Driver licenses, fingerprints"
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Date: Friday, 05 Sep 2014 14:32
According to AP: Unable to dissuade panhandlers from asking people for money, the San Antonio police chief now wants authority for his officers to write Class C tickets to passersby who give people spare change! Problem is, asking for money is speech and, after Citizens United ruling, we all know money is speech. So First Amendment red flags abound.

Here's Texas Civil Rights Project legal director Wayne Krause's money quote in the AP story, "The idea of criminalizing people giving is both unkind and legally unsound. ... The First Amendment protects the right to ask for help. It certainly protects the right to choose to whom we give assistance."

It's great TCRP is fighting this, but it's too bad there wasn't any clergy in the room. Somebody could have quoted to the council from Matthew 25:36-47. Perhaps some of them will have time to review those passages before the ordinance comes before them next month.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "First Amendment, frequent flyers, Homele..."
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Date: Friday, 05 Sep 2014 10:57
Grits has discussed police use of fake cell-phone towers (or "IMSI catchers," colloquially known by the brand name "Stingrays") by police, but it turns outs cops may not be the only ones using this technology. Seventeen different fake cell tower devices have been identified around the country - four of them in Texas - by a company specializing in making secure mobile phones. CBS News quoted:
Ross Rice, a former FBI agent, [who] said it’s likely [they are] being used illegally.

“I doubt that they are installed by law enforcement as they require a warrant to intercept conversations or data and since the cell providers are ordered by the court to cooperate with the intercept, there really would be no need for this,” Rice said.

“Most likely, they are installed and operated by hackers, trying to steal personal identification and passwords.”
I wouldn't be too sure about that: Some law enforcement do have Stingrays - Fort Worth PD definitely owns one and several people have told me Houston PD does too, though I've never confirmed it. Departments must sign non-disclosure agreements when they purchase Stingrays so it's impossible right now to know which agencies have them. And Texas law does not specifically regulate the devices.

Given that, IMO most IMSI catchers the company found are likely run by law enforcement or spooks (many of the devices are located near military bases, reported Computer World).  Perhaps it's just the NSA doing their thing. The feds have even used wearable Stingray devices to covertly monitor political demonstrations. Who knows?

Still, it's notable that, while criminals can't buy the necessary equipment pre-fabbed from the Harris Corporation (Stingray's manufacturer), the tech involved isn't particularly high end stuff and there's nothing to stop someone with nefarious motives from making their own if they have the technical chops.

The Federal Communications Commission recently established a task force to study whether these devices are being misused. But Grits agrees with this expert quoted by the Washington Post that the FCC shouldn't seek to regulate the devices (let courts and legislatures do that) but to eliminate the vulnerabilities that allow them to operate:
Stephanie K. Pell, a cyber-ethics fellow at the Army Cyber Institute at the U.S. Military Academy, said the FCC should investigate not only the illegal uses of IMSI catchers but the network vulnerabilities that allow them to work.

“I think it would be prudent to assume that the Chinese government and criminal gangs don’t care if IMSI catchers are illegal,” said Pell, who has written extensively about the technology. “Ultimately if we are going to get to the root of the problem, we will have to deal with this from a network vulnerability perspective.”
Law enforcement won't like that suggestion because it would eliminate one of their favorite new toys, but technology is value neutral. An IMSI catcher doesn't care if it's used to catch crooks or commit crimes. So if cops want to stop the bad guys from using them, the tradeoff will be that they must also remove this tool from their own toolbox.

Until a technical solution is in place, Grits will continue to support laws regulating the use of IMSI catchers by government. But the safer approach would be for the FCC to require companies to fix the vulnerability and, eventually, make the issue moot.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "cell phones, Fourth Amendment, NSA, Poli..."
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Date: Wednesday, 03 Sep 2014 13:13
Mark Bennett has a nice post up at Defending People detailing the ongoing First Amendment challenges to various Texas criminal statutes. Check it out.

After Mark's victory challenging the constitutionality of Texas' online solicitation of a minor statute on First Amendment grounds, I think a lot of folks - though regrettably, not yet legislators - are taking his arguments on these questions more seriously than not too long ago. If he's right, several more Texas statutes limiting sexual-themed speech may ultimate fall, probably starting with improper photography.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "First Amendment, improper photography, o..."
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