Blaming the victim, Texas style

This is a video that Texas now requires all high school students to view. Its purpose is to "teach" students how to interact with the police.

But, in reality, it serves to give the police any number of excuses when they make the decision to pull their weapon and shoot someone.

And I don't want to hear that constant refrain that being a cop is a hard job. No one was forced to enter law enforcement. Everyone who attended the academy made the decision that's what they wanted to do.

The State of Texas has made the decision to side with the police when it comes to the shooting of unarmed black men. Texas has decided that the blame falls squarely on the victim of police violence because they didn't act in a certain manner. This mindset lets the police off the hook when they turn a situation confrontational. It lets them off the hook when they decide to draw their weapon.

It's the classic game of blame the victim.

Part of the problem is that law enforcement loves to play soldier. Local departments are dressing their officers in uniforms that look like fatigues. They are carrying military-style weapons. Departments are handed surplus military gear like it's candy.

And in this effort to have a War on Drugs - or whatever other evil is the flavor of the month - police officers adopt an "us v. them" attitude. The police are on patrol. The news media refers to ordinary citizens as civilians - so as to differentiate them from the police.

Now don't get me wrong. The police have always been used to enforce the social order. They were the front line defenders of Jim Crow in the South. The images of Bull Connor turning the police dogs on civil rights protesters can never be erased from the mind. The police have been used to bust strikes. They have been used to deny people their right to assemble peaceably and petition the government over their grievances.

I don't think we should be surprised that such a video becomes must-watch propaganda in Texas. There are more than enough wing nuts in the state legislature and Board of Education who love the idea of a police state (while telling their supporters how evil government is). Not surprisingly, the video left out the most important instruction in how to deal with the police -- not being black. Until we can sit down and discuss the racism at the core of policing, nothing will ever change.

Perhaps police officers should have to watch a video to teach them how to interact with people of color.

Washington Supreme Court strikes down the death penalty

Allen Eugene Gregory was not a very good person. In 1996 he robbed, raped and murdered a woman. Two years later he was investigated for another rape. During that investigation police discovered evidence that tied Mr. Gregory to the robbery, rape and murder.

Mr. Gregory was convicted of aggravated first degree murder in the 1996 case. The jury sentenced him to death.

He was also convicted of the 1998 rape. The Washington Supreme Court later reversed the rape conviction.

On appeal to the Washington Supreme Court, the death sentence was overturned and the case remanded because the state relied upon the (reversed) rape conviction in the penalty phase of the trial.

In a new punishment hearing, a second jury then sentenced Mr. Gregory to death.

In the meantime, prosecutors learned that their complaining witness in the rape case lied at the first trial. Prosecutors, realizing they couldn't rely on their witness to tell the truth, then dismissed the rape cases.

***

In 1972 in Furman v. Georgia, the US Supreme Court declared the death penalty to be unconstitutional in its application. The Court held that states had imposed the death penalty in "arbitrary and capricious manner."

Three years later a ballot initiative in Washington passed making the death penalty mandatory for specified offenses. The following year, in Woodson v. North Carolina, the US Supreme Court held that mandatory death sentences were also unconstitutional.

Washington then passed a statute that called for a sentencing hearing where evidence of aggravating factors, as well as mitigating factors, would be presented to a jury. If the jury found an aggravating circumstance and deemed the mitigating factor insufficient to warrant mercy, a death sentence could be imposed.

The Washington Supreme Court struck down that statute because it allowed the state to impose the death penalty on a defendant who demanded his constitutional right to a trial, but it did not impose it on defendants who pleaded guilty.

The death penalty statute was then rewritten to require automatic review (a proportionality review) of death sentences by the state Supreme Court to determine whether there was sufficient evidence to uphold the death sentence, whether the death sentence was disproportionate to the penalty assessed in similar cases, whether passion or prejudice contributed to the death sentence and whether the defendant had an intellectual disability.

***

Mr. Gregory appealed his death sentence, arguing that it was disproportionate to other sentences meted out for similar crimes and that is was applied in an arbitrary manner in his case because he was black.

In 2014, Katherine Beckett co-authored a report that found there was a wide disparity among counties when it came to imposing the death penalty and that a portion of that disparity had to do with the black population in the county. She also pointed out that a black defendant was four-and-a-half times more likely to receive a death sentence than a white defendant.

Like many states, Washington's state constitution has a provision outlawing cruel and unusual punishment. And, like in many states, the protections granted under that clause are stronger than the protections afforded under the 8th Amendment to the US Constitution.

And it was that clause that the Washington Supreme Court relied upon in striking down the Washington death penalty statute for the fourth time.

***

In 2000 about 50.3% of the population in Texas was white. Latinos made up about 34.2% and Blacks made up 12%.

Since 1976, 34.5% of the inmates murdered at the hands of the state were Black while 55.6% where white and 8.2% were Latino. Over the years, 75.6% of the victims in death penalty cases were white while only 15.3% were Black  and 6.9% were Latino.

For a long time Harris County was known as the death penalty capital of the United States - sending more people to death row each year than many countries. In the 2000 census, whites made up 56.5% of the county's population while Blacks made up 18.9% and Latinos 32.9%.

It is clear from the numbers alone that the death penalty is applied disproportionately based on race. I don't have the knowledge of statistics to run regression analysis to determine how much weight is placed on race in death penalty decisions, but when Black inmates are executed at a rate three times higher than their proportion of the general population, something is wrong.

Capital punishment is little more than modern day lynching with the imprimatur of the court. The fact that those on the right favor it with such fervor tells you that whites are overwhelmingly in favor of killing inmates (the fact that preachers and so-called religious conservatives support it tells you that they are nothing more than fucking hypocrites). The death penalty is a tool of oppression and social control.

The death penalty is applied in an arbitrary and capricious manner and nothing can change that. It is high time we moved beyond barbarism.

Sid Miller steps right in it (and doesn't even know it)

Sid Miller is the Texas Agriculture Commissioner. The job appears to be primarily about promoting Texas agricultural products as well as slapping stickers adorned with his visage on gas pumps and scales in grocery stores.

Apparently one of the unwritten duties of Ag Commissioner is to promote white nationalist causes on state time.

But before we criticize the man, we should get to know him and his accomplishments in office.

Mr. Miller appointed a man who had his medical license suspended after being convicted of perjury in a case dealing with his marriage to his 15-year-old stepdaughter. His license was later revoked when he failed to report a malpractice claim. In addition, Rick Ray Redalen was not only in charge of a task force on telemedicine --  he was the founder of a company that marketed telemedicine services.

The self-proclaimed fiscal conservative then used taxpayer money to get a shot from John Michael Lonergan, also known as "Dr. Mike," who took up shop in Oklahoma after losing his Ohio medical license. This shot was a so-called "Jesus shot" for chronic pain.

Mr. Miller also billed the taxpayers for a trip to Mississippi so he could compete in a rodeo. And these were in addition to handing out big bonuses for employees who hadn't even had a job evaluation and raising regulatory fees on farmers, ranchers and grocery stores.

This latest incident, though, threatens to overshadow every other idiotic thing this man has done in office. You see, Sid Miller is sponsoring a specialty licence plate to honor Confederate soldiers. The plate would raise money for the Sons of Confederate Veterans.

What the hell are the Sons of Confederate Veterans, you may ask. I was certainly curious. Here's a link to their website and here's what they raise money for:

The SCV Texas Division's continuing mission is to preserve the history and protect the honor and memory of our Confederate Soldier ancestors. But, we need your help.Please consider donating to our Heritage Defense Fund today. Time is of the essence as we see our flags, our monuments, and our historical sights attacked on a daily basis by those that have much more funding and undue influence with local government. 

That's right. Their sole purpose is to maintain the symbols of the Confederacy and to protect the legacy of those who fought to preserve slavery.

Then there is this:

The Texas heroes pictured above like thousands of other citizen-soldiers who fought for the Confederacy personified the best qualities of America. The preservation of liberty and freedom was the motivating factor in the South's decision to fight the Second American Revolution. The tenacity with which Confederate soldiers fought underscored their belief in the rights guaranteed by the Constitution. These attributes are the underpinning of our democratic society and represent the foundation on which this nation was built.

Let's be honest here, the only people whose liberty and freedom mattered where white men. While the group's website states in multiple places that they are not racists and that they oppose bigotry, those statements are completely at odds with the political philosophy of the Confederacy.

Organizations such as this were created and founded during the dying days of Jim Crow when southern states did anything and everything in their power to maintain white supremacy. This group does everything it can to paper over the issue of slavery - which is quite the act of gymnastics considering that the expansion of slavery was at the center of the Civil War.

Sid Miller is yet another example of what happens when folks vote for a candidate simply because he has an R after his name.

His pimping for a license plate to honor the Confederacy reveals just what kind of a person Sid Miller is. No longer are folks hiding their support for white supremacists and racism. The Trump presidency has made it safe for people to be open about their true beliefs. Let's see if any of those college-educated whites who vote Republican in Texas give a fuck.

Money to burn

In its never-ending quest to make prisons as inhospitable as it can (just because it can), the State of Texas spent $7 million fighting a lawsuit over the installation of air conditioning at a prison unit near College Station, Texas. Inmates filed the suit in 2014 arguing that the conditions in the prison during the summer violated the 8th Amendment's prohibition on cruel and unusual punishment.

The inmate suit pointed out that 23 inmates had died of heat stroke since 1998 including 10 who died during a heat wave in 2011.

Currently about 75% of prison housing units in Texas lack air conditioning.

The state wasn't having any of it. An expert hired by the Texas Department of Criminal Justice estimated that it would cost $20 million to install a/c at the prison. After a federal judge told Texas that the conditions were unconstitutional, the cost to install the a/c suddenly fell to a mere $11 million.

Under pressure to settle the case, lest the damages spiral out of control, TDCJ revised its estimate to install a/c down to $4 million. The estimate had come in so low that TDCJ has asked the legislature for more money to install a/c at a unit housing developmentally challenged inmates.

So, to recap, the geniuses running this state spent around $7 million dollars to defend a lawsuit when it only would have cost about $4 million to install the air conditioning system. Why was the state fighting the suit in the first place? Why would you spend almost three times as much to defend a lawsuit as it would cost to do what was asked of you?

This is fiscal responsibility for conservatives in Texas. We would rather spend a shitload of money so we don't set a precedent by doing the right thing. Then, when a loss is damn near guaranteed, we'll concede that we lied from the get go about the cost and we'll do the work.

So, Greg Abbott, what have you to say for yourself? What other uses were there for $11 million?

So, Dan Patrick, what have you to say for yourself? You're the one who's supposed to be the fiscal conservative, yet you set $11 million on fire to prove a point. You were a blowhard when you were the sports anchor at KHOU (and how I wish I could find footage of the time you painted yourself blue for an Oilers playoff game) and you're still a fucking blowhard today.

So, Ken Paxton, what have you to say for yourself? I understand it can be difficult to do your job when you're constantly fending off indictments and ethics charges, but surely a wingnut like yourself can't condone the waste of $11 million.

And, more importantly, why do we have prisons units in this state not equipped with air conditioning? What purpose does that serve? The men and women in these units are still human. They may have done things we find repugnant, but they still deserve to be treated better than animals. Making life as hard as possible for inmates does nothing for them when they are released back into society. But, hey, the inmates don't have a powerful lobby so we'll just make life hell for them until they file a lawsuit against us.

You think we'd know better by now.

Two for Texas

Hey, make no mistake about it, I love living in the Lone Star State. I've lived here all my life and have no intentions of going anyplace else. But, let's be brutally honest, Texas has more than its fair share of stupid ideas.

The latest comes from our esteemed Lt. Governor David Dewhurst. As best as I can tell, Mr. Dewhurst was dead serious when he proposed that the state fund specialized weapons training for teachers and administrators selected to carry guns on campus. Under his proposal districts could decide whether they wanted to designate one teacher and one administrator on each campus to pack heat. The state would then provide the funds to train them in how to use a gun correctly and how to handle a situation in which a gunman starts firing inside a school.

Just let that sink in for a minute.

Apparently Mr. Dewhurst is still licking his wounds from getting beaten by that tea-baggin' wingnut Ted Cruz who two-stepped into the U.S. Senate promising to introduce legislation to repeal Obamacare. Somewhere along the line he felt the need to dial up the wingnut tendencies to appease the far right.

I know the NRA seems to think the solution to gun violence is to put more guns out on the street. And if that notion seems absurd - the notion of more guns on school campuses seems downright obscene.

And, just to prove that Mr. Dewhurst's latest brainstorm isn't a fluke - over in Pearland (a suburb of Houston), an 11-year-old was arrested for threatening to bring a gun to school. He wasn't sent to the office and placed in an in-school suspension program. He wasn't placed in an alternative school. He was arrested.

Someone please enlighten me as to what good it does to place handcuffs on a 5th grader and cart him off to the police station. As a rule, kids that age don't appreciate the consequences of their actions. They live in a bubble and have a hard time understanding that the things they do may affect others.

Now, instead of learning math and science and grammar, this young boy is learning all about the criminal (in)justice system. What an education he will receive. Instead of reaching out and trying to help this young boy, the folks entrusted to educate him threw up their hands and passed him off to law enforcement.

Sure, they were probably a bit skittish after what happened last month in Connecticut. I get that. But the kid is only eleven.

Farming out discipline problems to the courts is a losing proposition but it sure is a hell of a lot easier than dealing with the problem yourself. The administrators responsible for this incident should be ashamed of themselves and might want to take a long hard look at themselves in the mirror. There is no excuse for putting an 11-year-old in handcuffs.

The government knows best

The State of Texas has decided it is qualified to tell doctors how to run their practices and what to tell their patients. According to a proposed rule for the state's Women's Health Program, doctors would not be allowed to provide abortion counseling for their patients.

The gag order would extend to other doctors in the practice - even if they aren't participating in the program - as well as to other patients who are not in the program.

The purpose of the rule is very clear. It's yet another attempt by the far right to limit women's access to abortion. It's yet another example of the government getting involved in an area in which it has no business being involved. Our beloved state legislators are barely capable of doing that job (and everyday I am thankful that they are only allowed to meet for 140 days every other year); they are not qualified to stick their noses in the conversations that doctors have with their patients.

I understand that there are those who are adamantly opposed to a woman's right to have an abortion. Ironically, most of them have no problem with the state murdering inmates - but that's another story for another day. Of course most of them are also opposed to the coverage of birth control under the Affordable Care Act - but intellectual consistency has never been the calling card of the far right.

The proposed rule would seem to run afoul of that little thing we refer to as the First Amendment. The rule would impose a limitation on the ability of doctors to speak freely with their patients. It would subject the doctor to penalties should he provide abortion counseling to his patient.

Once again we find the far right cheering on the government's attempt to invade the privacy of its citizens without any apparent irony considering the tea baggers' insistence that the power of the government must be limited.

Life on death row

Just what does it mean to be locked up in Texas' death row in Livingston, Texas? Last week the BBC ran an interview with convicted death row inmate Ivan Cantu conducted by Paul Allen. In it, Mr. Cantu paints a stark picture of what it means to be locked in a cell devoid of human contact for up to 22 hours a day.

According to Mr. Allen:

This was a man [Ivan Cantu] who badly wanted to talk, who craves company more than almost anything else. 

He said that this encounter with a complete stranger was the most exciting thing that had happened to him in ages.

Mr. Cantu was convicted of capital murder back in 2001 and sentenced to die. Last year he was within a month of being strapped down to the gurney at the Walls Unit in Huntsville before his execution was stayed.

Now I'm not here to discuss the facts of Mr. Cantu's case. I don't know anything more that what I heard on the radio and read in the article. My concern has to do with the manner in which we treat inmates such as Mr. Cantu.

The majority of men and women on our nation's death rows are guilty of murder. I don't think there's much question about that statement. But even the most despicable inmate deserves to be treated with at least a modicum of respect.

He is an articulate man, but he said something I had never heard before: the longer he stays on death row, the harder he finds it to express himself. 

For all his voracious reading, the lack of regular conversation, he feels, is eroding his power to communicate.

As Mr. Allen points out, the walls of the Polunsky Unit are grey and brown, the uniforms white and the windows (actually more slit than window) are covered in dirt and grime. The inmates on death row are locked in their cells for 22 hours a day. They are all held in solitary confinement. They have access to reading materials, radios and typewriters but no computers or televisions. Their days are devoid of any meaningful communication with another person.

And just as murdering an inmate doesn't bring his victim back to life or cure the gaping wounds left behind by violent crime, locking someone in a cage with human contact for 22 hours a day does nothing to relieve anyone's pain or loss.

Treating a man like a caged animal does neither the inmate nor society any good. We can certainly do better.

A visit to Monument Hill

Back in the winter of 1842 an expedition party made up of Texas soldiers crossed the Nueces River into what was then Mexico. Despite orders to leave and return to Texas, the raiders attacked the town of Mier. Outnumbered the men surrendered to the superior Mexican forces.

The men were taken prisoner and sentenced to death. The execution order was later withdrawn and the men were taken to the Mexican town of Salado where they were imprisoned. In February 1843 the Texans escaped, but their freedom was short-lived as 176 of the men were recaptured a week later.

Santa Anna ordered the men killed but the governor nixed the execution. After much hand-wringing it was decided that one man in ten would be sent to his death. That death lottery is known as the Black Bean Episode.

The Texans were ordered to draw a bean from a bag. If a man drew a white bean his life was spared. If, on the other hand, he drew a black bean, the executioner awaited.

A few months earlier, on September 11, 1842, an army of 1,600 Mexican soldiers entered Texas and captured the city of San Antonio. Six days later a group of 53 Texas volunteers from Fayette County went into battle against 1,000 Mexican troops. The Texans were all killed in what is known as the Dawson Massacre.

A mile south of La Grange is Monument Hill which stands as a memorial to the Fayette County men who died outside San Antonio and for those who died in the Black Bean Episode. The bodies of all but one of the men were repatriated and buried on Texas soil - and that is where they lie today, overlooking the Colorado River.

The monument erected in 1936 to commemorate those who died in Salado.

The final resting place for all but one of the Texans.

The view of the Colorado River from behind the monument.

Should DWI be a capital crime?

Douglas Berman over at Sentencing Law and Policy seemed quite upset that motorists in Texas continued to get behind the wheel of a car after drinking. He couldn't understand why, even with No Refusal weekends popping up all across the state, we insist on drinking and driving.

His suggestion was to make a drunk drivers involved in accidents in which another person is killed eligible for the death penalty. Whoa! There's crazy and then there's driving the bus over the cliff. Mr. Berman is driving the bus.

In Texas you are eligible for the needle if you kill a police officer or a prison guard. You are eligible for the needle if you kill someone during the commission of certain felony offenses (kidnapping, robbery, sexual assault, burglary or arson - among others). You are eligible for the needle if someone paid you to kill another person. You are also eligible if you kill more than one person or a child under the age of six ten (thanks, Amy).

In each instance, the defendant must have committed the murder - or the underlying felony offense - with the proper mental state. You remember, that whole bad act + bad thought = crime.

Now Mr. Berman is correct that some DWIs are prosecuted as felonies. If you are driving while intoxicated with a child under the age of 15 in the car - that's a state jail felony (if you're not from Texas, don't ask). Rack up two DWI convictions and your next will land you in felony court as well.

But here's where Mr. Berman's idea fails - there is no culpable mental state for driving while intoxicated. The theory is that an intoxicated person cannot form the necessary mental state to commit a felony offense. And, if you think about the definition of intoxication in Texas, it makes sense.

Texas defines intoxication as the loss of the normal use of one's mental or physical faculties by the introduction of alcohol into the body. Well, if you've lost the normal use of your mental faculties, you are incapable of intentionally or knowingly committing any other act. That's why when someone is killed in a wreck involving an alleged drunk driver, the defendant is charged with intoxication manslaughter, not murder.

One thing we don't know from the data Mr. Berman is viewing is how many of those deaths in 2010 were the result of the drunk driver's negligence. As perverse as it sounds, it's quite plausible that the drunk driver was not at fault for the accident. I would also argue that it's possible that the increased number of deaths resulting from drunk driving has more to do with increased detection through the use of mandatory blood draws in fatality accidents in which intoxication is suspected.

I don't know whether Mr. Berman was being extreme in order to generate discussion or whether he actually feels that way; either way, as a civilized society we should be looking for ways to reduce the number of people our government kills, not increasing it.

Looking at the death penalty county-by-county

Robert J. Smith, a visiting professor at the DePaul University College of Law has taken the analysis of death sentences across the country to an entirely new level. He authored a paper that will be in an upcoming issue of the Boston University Law Review tracking death sentences by county.

While Texas has a reputation for lining 'em up and mowing 'em down, the reality is that 220 of the 254 counties in Texas issued no death sentences between 2004-2009. Over that period, 19 counties imposed a death sentence only one time. Of the remaining 15 counties that imposed more than one death sentence over that period, only four counties sentenced defendants to die at a rate of more than one a year.

For anyone practicing in Harris County, these results should not come as a surprise. According to Professor Smith's research, these are the four counties that lead the state in death sentences:

• Harris (26)
• Bexar (10)
• Tarrant (10)
• Dallas (8)

Texas isn't even the leader in ordering the murder of its own citizens. Los Angeles County imposed more death sentences (33) in 2009 that the entire state of Texas. Maricopa (AZ) County imposed more death sentences (37) that the entire state of Alabama.

Professor Smith's research shows that 10% of the nation's counties account for every death sentence issued between 2004-2009. Less than 1% of the nation's counties sentenced, on average, more than one person a year to death - accounting for 50% of all death sentences. Thirteen counties average more than two new death sentences a year - they accounted for 29% of all death sentences.

It is also important to track executions at the county level. The strongest remaining rationale for the continued Eight Amendment validity of capital punishment is its retributive effects; however, if counties sentence people to death that the states do not execute then the retributive function of the death penalty is diminished because the act of execution is not realized. -- Robert J. Smith, "The Geography of the Death Penalty and its Ramifications"

If we look at the number of executions carried out, however, Texas is far and away the leader in the number of state-sponsored murders committed between 2004-2009 with 134 executions, accounting for 45% of the executions carried out during that period. The State of Ohio was a distant second with 25 executions, accounting for 8% of the total.

If we look at the "efficiency" of the state killing machine, only four counties across the nation saw more than one of their death sentences carried out (on average) each year. Those counties are:

• Harris (42)
• Dallas (13)
• Bexas (12)
• Tarrant (11)

Here's one other little nugget to think about, in Florida, a jury can sentence a person to death by a majority vote of the jurors while Alabama only requires that 10 jurors agree to death in order to impose the death penalty. Alabama and Florida also permit judges to overrule jury recommendations and impose a death sentence anyway.

The death penalty is applied arbitrarily and capriciously. It doesn't undo the deed that led everyone to the courtroom. It only serves to give politicians and judges a platform to declare that they are tough on crime.

A view of the wildfires from outer space

This is a view of the wildfires burning in Texas from the space station.

If you read Robert Caro's biography of Lyndon Johnson, you'll find out that over the course of history, wildfires sparked by lightning strikes made the Central Texas soil fertile enough to farm. As more and more people moved into the Hill Country, nature's cycle of destruction and new life was interrupted and the soils lost a good deal of their fertility. The increase in population also made the natural occurrence of wildfires more dangerous and destructive.

New website to check driver license status

If you need to check the driver's license status of yourself or a client, here's a new website from the State of Texas that will allow you to make a quick check:

https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do

The site will give the license status, compliance requirements, other requirements and necessary fees to be paid.

A look lack at the 82nd Texas Legislature

Here's an update on matters affecting lawyers and the criminal (in)justice system that were introduced into the recently completed regular session of the Texas Legislature that were mentioned in this blawg.

HB1173: This bill would give the state 36 hours to hold a probable cause hearing in counties with more than three million residents (Harris County) instead of having to hold the hearing within 24 hours. The bill passed both the House and Senate and was sent to the Governor on May 30, 2011.

SB1879/HB3807: This bill would have allowed the City of Houston to use recording devices instead of court reporters in trials in municipal court. The House passed its version but the bill never got out of the senate committee.

HB243: This bill would make it a criminal offense to text while driving in Texas. The House passed the bill but it never came up for a vote in the Senate.

HB96: This bill would have allowed the prosecution's chief investigator to set in the courtroom and listen to testimony - even if "The Rule" were invoked. It passed the House but never came up for a vote in the Senate.

HB1072: This bill would have waived State Bar dues for lawyers employed by the State of Texas. It passed the House but never came up for a vote in the Senate.

HB189: This bill would have made first-time DWI offenders eligible for deferred adjudication - but not for an order of nondisclosure. The bill would also allow a DWI "dismissed" through deferred adjudication to be used for enhancement purposes. The bill passed the House but failed to get out of committee in the Senate.

SB152: This bill would have allowed for the admissibility of evidence of prior bad acts by individuals charged with certain sexual offenses. The Senate passed the bill but it never came up for a vote in the House.

SB232: This bill would have mandated the SCRAM device for certain probationers in alcohol-related cases. It failed to get out of committee.

SB1526: This bill would have mandated reciprocal discovery in criminal cases. It, too, failed to get out of committee.

When the right hand doesn't know what the right hand is doing

Scott Henson over at Grits for Breakfast points out that the Teabaggers aren't necessarily playing along with the "big government" conservatives up in Austin. It seems that the more libertarian of the bunch have a problem with the right's war on the Bill of Rights.

According to Sharon Edmonds at the Texas District and County Attorneys Association:

Earlier this week, SB 1717 by Duncan/Lewis, an omnibus judicial reform bill, became what we call a "Christmas tree," so named because of all the amendments that other members tried to "hang" on it. Many of those amendments were formerly dead bills, including HB 1507 by Christian, a prosecutor-supported bill that would authorize non-lawyer JPs to issue evidentiary search warrants in smaller counties. Once offered, the amendment immediately started taking fire from several House members—urban and rural, Democrat and Republican—who expressed concerns about expansive searches, especially relating to blood draws in DWI cases. Now, there has always been some generalized resistance at the capitol to the existence of non-lawyer magistrates, but this time, the anti-government Tea Party effect crystallized that opposition into a solid voting bloc that defeated the amendment by a stunning vote of 17-121. As a result, the author of the amendment joined the ignominious "100 Club" for putting forth a matter that drew over 100 "nay" votes. We bring this to your attention because it is only one of several indications that things are changing at the state capitol. Just be glad that we passed some blood draw legislation last session, because if we hadn't, that bill would be D.O.A. this session. And that, friends, is the new legislative math for the foreseeable future.

I say "Bravo!" to the Teabaggers on this front. It is about time someone stood up and argued against bills expanding the state's power to force folks to give up evidence that might incriminate themselves. The right wing of the Republican party has long championed itself as the party of limited government. As I have pointed out before, that moniker only applies when it comes to state-funded services for the poor. The right wing has never had any problem expanding the role of government when it comes to criminal justice matters.

It would appear that some members of the Tea Party movement aren't mere puppets of the GOP but actually adhere to the maxim that the government who governs least, governs best. It's good to see someone pointing out the hypocrisy in the Republican camp.

The Economist has even piped in about conservatives bringing about sentencing reform in the face of budge shortfalls.

So long as the Republican party is split among fiscal conservatives, Bible-thumpers who feel the need to tell the rest of us how to lead our lives and libertarians there will be conflicts between those who wanted limited government and those who just mouth the words.

Will the bad ideas ever cease?

Alcohol Monitoring Systems, Inc. must be paying their lobbyists in Austin a pretty penny as legislation is pending before the Senate Criminal Justice Committee that would require motorists placed on probation for DWI to wear a SCRAM bracelet. The legislation was authored by Sen. Jane Nelson (R-Grapevine).

For those of y'all not familiar with SCRAM, it's an ankle bracelet that supposedly monitors a person's sweat for the presence of alcohol. The device is supposed to be super-sensitive to alcohol and is, therefore, known for giving false readings due to cologne, perfume, body spray and lotions (just to name a few). The device is also prohibitively expensive for most folks who find their way into the criminal (in)justice system.

The device requires a deposit and a monthly fee approaching $500.

Interestingly enough, AMS markets its ankle monitor for the "hard-core" drunk driver -- not the first-time offender.

All such a requirement will do is force more motorists to accept jail time instead of probation due to the prohibitive cost and will increase the number of motions to revoke filed by probation officers due to faulty equipment.

Sen. Nelson and her ilk don't seem to realize that a DWI probation is the more severe sentence a first-time offender can receive. This person, who likely has no prior contact with the criminal (in)justice system, must now report to a probation officer once a month, be subject to random piss tests, and drive around for at least a year with an ignition interlock device in their car. There is a reason that most criminal defense attorneys advise their clients to take time served and a fine (if offered).

I noticed there is no fiscal note attached to the proposed legislation. It would appear that Sen. Nelson hasn't thought about the increase in the number of people who may have no choice but to opt for jail time instead of probation. It also appears that Sen. Nelson has no idea of the true cost to a motorist of a DWI conviction as things stand currently.

Enough of the piling on. What's next? A registry for motorists convicted of driving while intoxicated? Oh, that's already been proposed.

Lone Star State turns 175

In a sleepy little town on the banks of the Brazos River, while Santa Ana's forces laid siege to the Alamo, 59 men met and declared Texas independent. On March 2, 1836, the Republic of Texas was born.

The Texas Declaration of Independence was modeled after Thomas Jefferson's declaration - spelling out the role of government and listing the grievances the Texans had with Mexico. George Childress is generally credited as being the author of the document.

Mr. Childress was born in Tennessee in 1804 and crossed the Red River into God's country in December of 1835. In 1841, after several unsuccessful attempts to establish a law practice, Mr. Childress killed himself by slashing his abdomen with a bowie knife.

So, raise a glass of iced tea and wish Texas a happy birthday.

Remembering the Alamo

175 years ago today began the 13 days of glory that defined the Republic of Texas. On February 23, 1836, General Santa Ana's forces arrived in San Antonio de Bexar and laid siege to the mission known as the Alamo.

For thirteen days about 190 men fought off the Mexican army. On March 5, 1836, with the end in sight, Col. William Travis gathered the men together and told them if they stood their ground, they would be killed. Legend has it that Col. Travis took his sword and drew a line in the sand and asked those men who were willing to fight and die with him to cross it. As the story goes, only one man didn't cross it.

Santa Ana's army made its final assault the next morning, and by the time the sun rose, the Alamo had been taken and the defenders were all dead.

The legend of the Alamo is deeply ingrained in everyone who grew up in Texas. It remains my daughters' favorite place to go.

Fighting for the rights of the accused and standing beside them before a jury sometimes feels as hopeless as trying to defend the Alamo against a superior army. But sometimes it's the fight itself that is the victory. It was  fall of the Alamo and the death of the defenders that provided the spark that spurred on the Texans as they ultimately prevailed on the banks of the San Jacinto River.

Happy birthday, Lone Star State

On March 2, 1836, 59 men gathered in a house along the Brazos River in Washington, Texas, and signed their names to the Texas Declaration of Independence. Among the complaints registered in the declaration were the Mexican government's demand that the Texans give up their weapons, refusal to allow freedom of worship and the denial of the right to trial by jury (there was also that pesky little matter of slavery that the Mexican government was opposed to).

As we celebrate the 174th birthday of the Republic of Texas, take a few moments to read the Texas Declaration of Independence.

When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.

When the Federal Republican Constitution of their country, which they have sworn to support, no longer has a substantial existence, and the whole nature of their government has been forcibly changed, without their consent, from a restricted federative republic, composed of sovereign states, to a consolidated central military despotism, in which every interest is disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the everready minions of power, and the usual instruments of tyrants.

When, long after the spirit of the constitution has departed, moderation is at length so far lost by those in power, that even the semblance of freedom is removed, and the forms themselves of the constitution discontinued, and so far from their petitions and remonstrances being regarded, the agents who bear them are thrown into dungeons, and mercenary armies sent forth to force a new government upon them at the point of the bayonet.

When, in consequence of such acts of malfeasance and abdication on the part of the government, anarchy prevails, and civil society is dissolved into its original elements. In such a crisis, the first law of nature, the right of self-preservation, the inherent and inalienable rights of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right towards themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their future welfare and happiness.

Nations, as well as individuals, are amenable for their acts to the public opinion of mankind. A statement of a part of our grievances is therefore submitted to an impartial world, in justification of the hazardous but unavoidable step now taken, of severing our political connection with the Mexican people, and assuming an independent attitude among the nations of the earth.

The Mexican government, by its colonization laws, invited and induced the Anglo-American population of Texas to colonize its wilderness under the pledged faith of a written constitution, that they should continue to enjoy that constitutional liberty and republican government to which they had been habituated in the land of their birth, the United States of America.

In this expectation they have been cruelly disappointed, inasmuch as the Mexican nation has acquiesced in the late changes made in the government by General Antonio Lopez de Santa Anna, who having overturned the constitution of his country, now offers us the cruel alternative, either to abandon our homes, acquired by so many privations, or submit to the most intolerable of all tyranny, the combined despotism of the sword and the priesthood.

It has sacrificed our welfare to the state of Coahuila, by which our interests have been continually depressed through a jealous and partial course of legislation, carried on at a far distant seat of government, by a hostile majority, in an unknown tongue, and this too, notwithstanding we have petitioned in the humblest terms for the establishment of a separate state government, and have, in accordance with the provisions of the national constitution, presented to the general Congress a republican constitution, which was, without just cause, contemptuously rejected.

It incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the acceptance of our constitution, and the establishment of a state government.

It has failed and refused to secure, on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen.

It has failed to establish any public system of education, although possessed of almost boundless resources, (the public domain,) and although it is an axiom in political science, that unless a people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self government.

It has suffered the military commandants, stationed among us, to exercise arbitrary acts of oppression and tyrrany, thus trampling upon the most sacred rights of the citizens, and rendering the military superior to the civil power.

It has dissolved, by force of arms, the state Congress of Coahuila and Texas, and obliged our representatives to fly for their lives from the seat of government, thus depriving us of the fundamental political right of representation.

It has demanded the surrender of a number of our citizens, and ordered military detachments to seize and carry them into the Interior for trial, in contempt of the civil authorities, and in defiance of the laws and the constitution.

It has made piratical attacks upon our commerce, by commissioning foreign desperadoes, and authorizing them to seize our vessels, and convey the property of our citizens to far distant ports for confiscation.

It denies us the right of worshipping the Almighty according to the dictates of our own conscience, by the support of a national religion, calculated to promote the temporal interest of its human functionaries, rather than the glory of the true and living God.

It has demanded us to deliver up our arms, which are essential to our defence, the rightful property of freemen, and formidable only to tyrannical governments.

It has invaded our country both by sea and by land, with intent to lay waste our territory, and drive us from our homes; and has now a large mercenary army advancing, to carry on against us a war of extermination.

It has, through its emissaries, incited the merciless savage, with the tomahawk and scalping knife, to massacre the inhabitants of our defenseless frontiers.

It hath been, during the whole time of our connection with it, the contemptible sport and victim of successive military revolutions, and hath continually exhibited every characteristic of a weak, corrupt, and tyrranical government.

These, and other grievances, were patiently borne by the people of Texas, untill they reached that point at which forbearance ceases to be a virtue. We then took up arms in defence of the national constitution. We appealed to our Mexican brethren for assistance. Our appeal has been made in vain. Though months have elapsed, no sympathetic response has yet been heard from the Interior. We are, therefore, forced to the melancholy conclusion, that the Mexican people have acquiesced in the destruction of their liberty, and the substitution therfor of a military government; that they are unfit to be free, and incapable of self government.

The necessity of self-preservation, therefore, now decrees our eternal political separation.

We, therefore, the delegates with plenary powers of the people of Texas, in solemn convention assembled, appealing to a candid world for the necessities of our condition, do hereby resolve and declare, that our political connection with the Mexican nation has forever ended, and that the people of Texas do now constitute a free, Sovereign, and independent republic, and are fully invested with all the rights and attributes which properly belong to independent nations; and, conscious of the rectitude of our intentions, we fearlessly and confidently commit the issue to the decision of the Supreme arbiter of the destinies of nations.

The people's building is no longer open to the people

The authority a democratic government exercises is granted to it by the people it governs. You remember what Abraham Lincoln said at Gettysburg about government of and by the people, right?

The gleaming palaces that our governors, legislators and judges occupy belong to the people -- we just allow them to use the space for a given amount of time.

When I was a student at the University of Texas I used to go down to the State Capitol complex every year on my birthday. I'd go at night because the floodlights focused on the beautiful pink granite made the building a glowing white. Back then you could drive right up to the Capitol and walk around inside 24 hours a day, seven days a week. Looking up at the dome from the rotunda was an amazing sight - no matter how many times you'd seen it before.

But then 9/11 happened and someone thought that the State Capitol might be a target of terrorists. Nevermind that if there were terrorists in Austin, they wouldn't pose much of a danger because after a short while they would be smoking pot, roaming up and down South Congress and watching Nanci Griffiths at the Cactus Cafe.

Now the powers-that-be have decided that we the people can no longer drive up and park alongside the State Capitol, that the building will only be open during the day and that visitors shall be subject to searches. And the politicians that closed the people's building to the people claim to be "of the people" and against government.

Now what was it that P.T. Barnum said about fooling the people?

Consular rights and the Medellin case

Mexican national, Jose Medellin, awaits execution in Texas while the U.S. Supreme Court decides the merits of his latest request for a stay of execution.

Mr. Medellin was convicted in the gang-rape and murder of two Texas teenagers in 1993. A total of six gang members were convicted in the double-rape and murder. One member was executed in 1996, two sit on death row (including Mr. Medellin), two had death sentences commuted to life in prison and one is serving 40 years.

In 2004, the World Court ordered a hearing to determine whether Texas' refusal to allow Mr. Medellin to visit with consular officials was a violation of the Vienna Convention on Consular Relations (1963).

Article 36(1)(c) of the Vienna Convention reads:

consular officers shall have the right to visit a national of the sending State who is in prison,custody or detention, to converse and correspond with him and to arrange for his legal representation.They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

On July 16, 2008, the World Court, based on its 2004 finding that Mr. Medellin's consular rights were violated, called on the United States to stay the execution but Texas decided to proceed.

As the execution machine in Texas continues its bloodlust, very little thought is given to the protections the Vienna Convention provides to American citizens overseas. We are used to our adversarial system in which, ultimately, a jury of our peers will determine our fate. The U.S. is one of the few countries in the world that provides trial by jury.In most countries, a panel of judges decides, based on documents filed by the prosecution, what a defendant's fate will be.

The protections provided under the Vienna Convention assure that anyone accused of a crime outside their home country will have the opportunity to discuss the basics of that nation's criminal procedure with a consular official.Should the U.S. and Texas continue to thumb their noses at the World Court, those protections will not be available for any American unfortunate enough to find themselves caught up in another nation's justice system.