Monday, September 28, 2009

Timothy Cole Advisory Panel on Wrongful Convictions

Timothy Cole was convicted and sentenced to 25 years in prison for the 1985 rape of 20-year-old Michele Mallin. He maintained his innocence, but it was not confirmed by DNA until years after his 1999 death, when another inmate confessed to the rape.

Based on this young man’s story the Texas Legislature passed HB 498 establishing the Timothy Cole Advisory Panel on Wrongful Convictions. This legislation went into effect September 1, 2009. The advisory panel was established to assist the Task Force on Indigent Defense to study and prepare a report regarding the causes of wrongful convictions, procedures and programs that may be implemented to prevent future wrongful convictions, the effects of state law on wrongful convictions, and whether the creation of an innocence commission to investigate wrongful convictions is necessary. Members of the advisory panel can be viewed under the members section of this page.

The director of the Task Force on Indigent Defense, Jim Bethke, is designated as the presiding officer of the advisory panel. The legislation also provides that advisory panel shall meet at the call of the presiding officer but not less than three times in person and as needed by telephone conference call.

An initial planning meeting is expected be held in the Fall of 2009, to discuss the scope of the study and develop a work plan to accomplish the directives of the legislation. A second meeting is expected to be held to review the work completed to date sometime in April/March 2010 with a final meeting sometime in October/November 2010. The final recommendations will be presented to the full Task Force on Indigent Defense at its November/December 2010 meeting. A final report will be sent to the Governor, Lt. Governor, the Speaker of the House, and the standing committees of each house of the legislature with a representative serving on the Advisory Panel.

Jim and I will keep you informed as this effort develops.

Integrated Justice

No, this does not refer to racial integration or addressing disproportionality in the justice system (perhaps a future topic here). I am referencing the need for a new local-state, judicial-executive, public-private partnership supporting justice system data exchanges to increase efficiency, improve key decisions, and promote positive outcomes in criminal, juvenile, and family justice.

The National Information Exchange Model (NIEM) and its predecessor effort (“GJXDM”) define a method for developing information exchanges across disparate justice entity databases, using Information Exchange Package Documentation (IEPDs) to define exchanges of information that need to occur as cases and people pass through a justice process. The Texas Path to NIEM began with TIJIS and criminal justice agencies, and has led to adoption of a rule by JCIT and the Judicial Council, 1 TAC §177.2, directing conformance to NIEM and the IEPD construct. It also led to the development of IEPDs for 28 criminal justice business processes, focused on the hand-off of a sentenced prisoner from county to prison, and production of the “pen packet” information that accompanies the prisoner under article 42.09, Section 8, Code of Criminal Procedure.
The NIEM model is expanding to include the Texas version of national efforts to share data between courts and child welfare agencies (DFPS in Texas), and courts and child support agencies (OAG in Texas).

Alongside and intertwined with the emergence of standards for sharing information are the evolution of e-filing , and the movement toward second and third generation case management systems for courts and counties. The JCIT will discuss these related topics at its first meeting under new Chair, Justice Rebecca Simmons, on Wednesday Sept. 30, 1:00, at the Texas Law Center.

Friday, September 18, 2009

Future Trends in State Courts 2009

I always review this report from the National Center for State Courts, and the 2009 version just came out and is up on their website. (Before you click on the 2009 version link, know it is a big document to download.) This year I was particularly looking forward to seeing the article that Tina Amberboy and I wrote, about the Permanent Judicial Commission for Children Youth & Families (pp. 110-113). Very timely as Texas and the Commission will soon host the Third National Judicial Leadership Summit for the Protection of Children, a convening of judicial and executive branch leadership from around the country, building collaboration to improve outcomes in the child welfare system. There are several other articles on improving child welfare, including one on data exchanges (pp. 97-102) that notes our work on the Texas Data-Enabled Courts for Kids project.

One theme in the 2009 Trends issue is court operations in a tight economy, which will be of interest to Texas readers going into the next legislative session, where we are told budgets will be tight. Under that heading, and because of our workgroup on pro se litigants, I would highlight "Access to Justice: Economic Crisis Challenges, Impacts, and Responses" (pp. 9-12), and "Redesigning for the Customer: Self-Service Sites Can Help the Courts and the Public in a Tight Economy" (pp. 45-49). Other items of interest to me or my office:
-"The Future of Court-Oriented Decision Making Assistance: Perspectives from the Washington State Office of Public Guardianship" (p. 65-68), of interest to our Guardianship Certification Board.
-"Oregon ECourt - Improving Judicial Outcomes and Services" (pp. 87-91), of interest to our Judicial Committee on Information Technology as a strategic vision of transformation of the business operations of state courts through creation of a statewide electronic court.
-Two articles on drug courts, a favorite topic about which I should blog more sometime (pp. 92-96 and 134-139).

Going back to that first link, note that the National Center for State Courts (finally) has their new website up and running, with a new URL ( instead of I haven't had a chance to prowl around a lot, but it looks very good and I encourage court devotees to check it out thoroughly.

Tuesday, September 15, 2009

Automated Registry

The Automated Registry (AR) is a secure browser-based system which allows criminal, family, and juvenile judges to submit a query for an individual appearing before the court. The query is submitted to multiple state agency databases and all results are returned to the AR system. The judge (or authorized staff) is able to view the results in a consolidated format. Once the user has completed their review, the data is released from the system. The AR system does not retain any agency data after it has been viewed. The only data stored in the AR system is a history of the query requests, for audit purposes.

This tool for trial courts was funded at OCA in 2007 and is now "open and ready for business." In FY10/11, OCA is prepared to add approximately 700 users to the AR system. The plan is to focus on courts in the major urban areas, the current users of the Judicial Webpage system, and other interested courts. OCA will add additional courts as funding becomes available. For more information go to the AR webpage.

Thursday, September 10, 2009

Court Technology

In two weeks I will be attending the Court Technology Conference (CTC) in Denver, with a team from our Judicial Committee on Information Technology. There will be lots of technology on display and the vendor contacts have already begun. Without providing free advertising to any particular one, and in our decentralized court system where every vendor theoretically has to make a pitch in every county or to each judge, I will use this space to alert judges to the capabilities that I hear about. In that vein, here are two different video products I have been recently alerted to (but do not vouch for), and judges are welcome to contact me to get in contact with the vendors.

1) Video records of pre-trial proceedings, trials, and appellate arguments. Many of these records link to transcripts and other trial documents, e.g., orders, major motions, and pleadings, to create a virtual case file on-line. Video records can produce substantial benefits for both judges and lawyers. For judges, the benefits include greater ease of scheduling hearings and trials because not all lawyers or parties need to be present in the courtroom; the opportunity to watch a witness again before writing an order or opinion; and an excellent way to see how expert witnesses scheduled to testify in their cases testified in other trials. For lawyers, the advantages include the opportunity to observe the presentations of expert witnesses they’re considering using in their own trials; watch counsel examine and cross-examine witnesses on issues of interest; and learn what happened in the courtroom even when they don’t have a transcript.
Video records can also be used as powerful judicial educational tools to show good courtroom management techniques, inform judges about scientific and other complex issues, and demonstrate the effective use of video technology itself. The equipment used does not interfere with court proceedings; it typically consists of one compact, stationary video camera on a tripod, a video encoder that enables the video signal to be sent over the Internet, an audio mixer, and a device that transmits the signal. With the exception of the camera, all of the equipment can fit on a small table. It usually takes about four hours to install and test the equipment. To webcast proceedings live, a separate Internet connection can be installed in order to prevent any disturbance to the court’s Internet connection.

2) Video security technology. This system is composed of a control system software and a line of multi-megapixel IP (Internet Protocol) cameras and high definition network video recorders (NVR) that capture and preserve surveillance evidence using lossless compression. The system allows for fewer cameras to cover the same area resulting in lower costs.

Monday, September 7, 2009

Incapacitation Effects

As several states ponder prison releases as a budget crisis measure, the National Center for State Courts - Center for Sentencing Initiatives embarks on a new effort to determine the impact of incarceration on subsequent offending. What is the marginal effect of incarceration - length of stay - on recidivism? Does incarceration shorten or lengthen residual criminal careers? Can policymakers be informed by research of the consequences of releasing some offenders before their sentences end, or of diverting them from prison in the first place? Are the answers to the last questions different in Texas, with 1 in 22 people under correctional control and 30% of that group in prison, versus a state like Oregon with 1 in 33 under control and 25% of that group in prison? (See One in 31, Pew Center for the States.) As Austin's own Dr. Bill Spelman put the issue in 2000 (27 Crime and Just. 419): "Over the past twenty years, the fifty American states have engaged in one of the great policy experiments of modern times . . . the states doubled their prison population, then doubled it again, increasing their costs by more than $20 billion per year. . . . [W]hether more prisons reduce crime matters less than how much." Enumerating the numerous methodological difficulties and varied results of studies, he concludes that "the results are sufficiently precise to conclude that most states should take a hard look before committing the money to build more prisons." (Spelman 422).
It turns out - of course - that there are robust academic debates in the substantial body of empirical research such as that displayed in volume 23 (2007) of the Journal of Quantitative Criminology, leading off with "Revisiting Incapacitation: Can We Generate New Estimates?" (Reuter & Bushway) The criminological approach relies on estimating lambda, the frequency of offending (so that, e.g., a year of incarceration/incapacitation prevents 10 crimes for an offender whose lambda = 10). The second, economics-based approach, encompasses incapacitation effects plus deterrent effects of prison (minus the effects of offenders being replaced by new offenders on the streets, as in drug dealing, and minus any criminogenic effects of incarceration) by generating overall estimates of the impact of prison on crime (and thus the ability to do cost-benefit analysis of the new prison beds). My favorite piece of the latter sort is "The Silence of the Lambdas: Deterring Incapacitation Research" (Miles & Ludwig 2007), which details the problems and limitations with estimating lambda and the lengths of criminal careers, and discourages criminologists from pursuing such lines of research. The National Center's current effort, which I have been privileged to observe as it takes shape, will systematically review the state of current knowledge and commission new research to try and provide policymakers with a more definitive understanding of the dilemma that some states already face, but virtually all should ponder.

Wednesday, September 2, 2009

The National Instant Criminal Background Check System (NICS)

The NICS is a computerized system established under the Brady Handgun Violence Prevention Act of 1993 (Brady Act), Public Law 103-159, to provide information to federal firearms licensees (FFLs) on whether a prospective purchaser is eligible to receive or possess firearms. The NICS was implemented on November 30, 1998, and is a coordinated effort between local, state, and federal agencies. NICS checks are conducted by both the NICS Section of the FBI’s Criminal Justice Information Services (CJIS) Division, and by state agencies acting as points of contact (POCs) for processing NICS checks for FFLs in their state. Before transferring a firearm to a non-licensed individual, an FFL must, pursuant to Title 18, United States Code (U.S.C.), Section 922(t), contact the NICS for a background check on the prospective transferee. The NICS then checks automated databases and, in cases where additional information is needed, makes follow-up requests to agencies such as the police, prosecutors, or the courts, that may have relevant information demonstrating whether the individual is prohibited from receiving a firearm under state or federal law. The NICS has three business days to determine whether a proposed gun transfer is prohibited. If the NICS has not been able to make a definitive determination within that time frame, the FFL may lawfully transfer the firearm.

The NICS Improvement Amendments Act of 2007, Pub. L. 110-180 (“the NICS Improvement Act”), was signed into law on January 8, 2008. The NICS Improvement Act amends the Brady Handgun Violence Prevention Act of 1993 (“the Brady Act”) (Pub. L. 103-159), under which the Attorney General established NICS. The Brady Act requires Federal Firearms Licensees (FFLs) to contact the NICS before transferring a firearm to an unlicensed person for information on whether the proposed transferee is prohibited from receiving or possessing a firearm under state or federal law.

The NICS Improvement Act was enacted in the wake of the April 2007 shooting tragedy at Virginia Tech, wherein the shooter was able to purchase firearms from an FFL because information about his prohibiting mental health history was not available to the NICS and the system was therefore unable to deny the transfer of the firearms used in the shootings. The NICS Improvement Act seeks to address the gap in information available to NICS about such prohibiting mental health adjudications and commitments and other prohibiting factors. Filling these information gaps will better enable the system to operate as intended to keep guns out of the hands of persons prohibited by federal or state law from receiving or possessing firearms. The automation of records will also reduce delays for law-abiding gun purchasers.

During the 2009 legislative session, HB 3352 (Naishtat/Ellis) was passed in order to implement the requirements of the NICS Improvement Act. Clerks of courts that hear the following types of cases are required to report to DPS within 30 days:
-order for inpatient mental health services;
-acquittal by reason of insanity;
-commitment to long-term placement in residential care under Ch. 493 Health & Safety Code;
-appointment of a guardian of an incapacitated adult; and
-determination of incompetence to stand trial.

The bill also creates a procedure for a person subject to one of these disabilities to seek relief, and requires reporting of those outcomes.

The most difficult compliance issue for clerks is the federal requirement, passed along in HB 3352, that clerks are to look all the back to Sept. 1, 1989 for orders in the above categories. Judge Guy Herman, Travis County, the Presiding Statutory Probate Judge, has issued an order to statutory probate clerks to begin the retrospective reports for the last five years (9-1-4 to 9-1-09), and to work on the 15 years before that by Sept. 1, 2011.

Judicial Statistics

Judges, the media, the public and policymakers all rely on the statistics collected by OCA on behalf of the Texas Judicial Council to understand the activity of trial and appellate courts in Texas. You can run your own reports based on the data collected, from the Judicial Data Management System.
In May 2008, the Judicial Council approved badly-needed changes to the monthly case activity reports and instructions, and adopted new reporting rules (Sections 171.1 through 171.6 of Title I of the Texas Administrative Code) for the district and county-level courts. These changes go into effect one year from yesterday, or Sept. 1, 2010.
The changes to the reporting forms will:
• Provide more detailed, useful information about court workload and activity, particularly in family law, juvenile and probate cases, where little information is currently collected and the information that is collected is of limited utility;
• Allow policymakers and other interested parties to track important, growing caseloads in child protection, guardianship and mental health cases, which require long-term court involvement and satisfaction of statutorily-mandated timelines; and
• Provide a more accurate picture of a court’s pending caseload by indicating how many cases are “active” cases (i.e., cases under the court’s control) versus “inactive” cases (i.e., cases not under the court’s control, such as a criminal case where a defendant has absconded and warrant has been issued for a defendant’s arrest, or a civil case in which one of the parties has filed for bankruptcy and the case is subject to an automatic stay). This enables a court to measure the age of its pending caseload more accurately and to determine meaningful case-processing times.
For some items on the new reports, the clerk may not have the required information and will have to rely on the judge or the judge’s staff to provide it. Examples include the number of:
•Civil cases ordered to or returned from arbitration or collaborative law proceedings;
•Probate and mental health hearings held;
•Regular status hearings held in drug courts or family violence courts; and
•Release or transfer hearings held (determinate sentence proceedings) in juvenile cases.
The new reporting forms and instructions and further information about them are posted on the OCA website under Required Reporting.