Arizona ruling leaves Texas lawmakers little leeway on police enforcing immigration law

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While the US Supreme Court yesterday struck down most of Arizona's law targeting illegal immigrants (see the opinions), the court declined to rule on one key provision [§2(B)] - whether police could be required to check immigration status of people they detain - saying the issue wasn't yet ripe for federal review. Some Texas lawmakers are saying that opens the door for Texas to enact a similar statute. According to the Fort Worth Star-Telegram ("Texas legislators likely to address immigration in wake of Supreme Court ruling," June 26)

Several state lawmakers are expected to revive the push for a bill similar to Arizona's "show me your papers" law, even though justices said in the Arizona ruling that officers couldn't arrest people on suspicion of immigration crimes. Last year's efforts to pass such a bill in Austin failed.

"The 'stop and ask' measure is fair game in the next session," said Bill Miller, an Austin-based political consultant who works with both Republicans and Democrats. "It absolutely will be proposed in Texas."

Read more here: http://www.star-telegram.com/2012/06/25/4058166/texas-legislators-likely-to-address.html#storylink=cpyThe Dallas News offered a similar assessment ("Arizona ruling opens door for Texas lawmakers," June 26):

Rep. Debbie Riddle, R-Tomball, said the ruling has underscored that Texas should have a law requiring police to check the immigration status of anyone legally detained.

“The fact is the Supreme Court upheld the most controversial factor,” she said, referring to a provision that forces police to ask those under arrest about immigration status if there is reason to suspect they are in the U.S. illegally.

But Rep. Riddle significantly overstates the leeway granted in the SCOTUS ruling. The court did NOT say such inquiries were constitutional but instead declared that: "It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives." (Emphasis added.) In other words, that part of the law MIGHT be unconstitutional depending on how it is implemented, but until Arizona actually uses the statute and their state courts interpret its limitations, it's premature for SCOTUS to rule on the question. They didn't say the practice is okay, they said they weren't going to decide right now, which is quite a different thing.

So under what circumstances might such detentions be ruled unconsitutional? The court emphasized a point often lost in immigration debates: "As a general rule, it is not a crime for a removable alien to remain in the United States." Indeed, the court explicitly overturned authority under the Arizona law for "state and local officers to make warrantless arrests of certain aliens suspected of being removable," saying that portion of the statute "creates an obstacle to federal law." The Arizona statute, said the SCOTUS majority, "attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created." Instead, according to Justice Kennedy's opinion:

The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue awarrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States inviolation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.”

So Arizona police can ASK about immigration status, for now, but they cannot arrest someone solely because of it, even if they entered the country illegally, except under circumstances prescribed by the feds.

Indeed, the court said it's possible even inquiring about immigration status MAY be unconstitutional but that it was premature to rule on the issue. Wrote Justice Kennedy: "It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision."

So the court advised Arizona it would "raise constitutional concerns" if immigration checks "delay the release of detainees for no other reason than to verify their immigration status." But isn't that inevitable? Say I'm stopped on the street or at a traffic stop, an officer asks my immigration status, and I exercise my right to remain silent: Wouldn't verifying my immigration status by definition extend my detention longer than would otherwise be the case? Because the Arizona law hadn't yet taken effect, there were no facts before the court to say so, but there's little doubt those questions will be raised as soon as it's implemented. I have a hard time seeing how verifying immigration status wouldn't "delay the release of detainees." How could it not?

And if in most cases police can't arrest someone regardless of their immigration status, as Kennedy's opinion makes clear (since "it is not a crime for a removable alien to remain in the United States"), what will they do with information about immigration status after they inquire?

Given these open questions, Texas legislators would be wise to let Arizona's legislation play out in the federal courts before following their lead. The practical and constitutional questions around such a practice remain far from resolved.

More litigation over summer heat in Texas prisons: Wrongful death suit filed

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The New York Times and the Texas Tribune both published stories yesterday about litigation over extreme heat in Texas prisons,  a subject Grits tackled earlier this month after oral arguments at the 5th Circuit Court of Appeals. Another lawsuit over the issue - this one a wrongful death suit - was filed last week. Reported the Times:

four inmates — Larry Gene McCollum, 58; Alexander Togonidze, 44; Michael David Martone, 57; and Kenneth Wayne James, 52 — died last summer from heat stroke or hyperthermia, according to autopsy reports and the authorities. Advocates for inmate rights believe that at least five others died from heat-related causes last summer.

On Tuesday, the Texas Civil Rights Project and an Austin lawyer filed a wrongful-death lawsuit in federal court on behalf of Mr. McCollum’s wife, son and daughter. They accused prison officials of causing his death by keeping him in the sweltering Hutchins State Jail outside Dallas, where he had a seizure around 2 a.m. on July 22 and fell from his bunk bed. 
When Mr. McCollum, who weighed 345 pounds and had hypertension, arrived at a Dallas hospital, his body temperature was 109.4 degrees. He died six days later.

The Times offered a bit more detail on other heat-related deaths from last summer:

Nearly two weeks after Mr. McCollum died, Mr. Togonidze and Mr. Martone died of hyperthermia on the same August day in different prisons. Five days later, Mr. James was found unresponsive at 3 a.m. at a prison near the East Texas town of Palestine. His body temperature was 108 degrees, and the cause of death was “most likely environmental hyperthermia-related classic heat stroke,” according to the autopsy report. Like Mr. McCollum, Mr. James had hypertension.

Also mentioned was the disparity in state rules for county jails and practices in state-run lockups: "A Texas law requires county jails to maintain temperature levels between 65 and 85 degrees, but the law does not apply to state prisons. The American Correctional Association recommends that temperature and humidity be mechanically raised or lowered to acceptable levels." Of course, the difference between state prisons and county jails is that most jail inmates are being held pretrial and haven't yet been convicted of anything. Still, it's ironic that the state regulates prisoner conditions at the counties that it's unwilling to address in its own facilities.

At oral arguments earlier this month, 5th Circuit Judge Carolyn Dineen King asked "do we have to wait till you kill someone in order for that person to have a cause of action?" As Grits reported, "The state's attorney answered 'no,' but could not articulate at what point prior to death a prisoner could sue over excessive heat." Now that litigation has expanded to include a heat-related wrongful death, that debate may eventually become moot, though the three-judge panel at the 5th Circuit didn't seem too impressed with it, anyway.

The Times article closed with what strikes me as an odd assessment from state Sen. John Whitmire:

State Senator John Whitmire, a Democrat from Houston and chairman of the Senate Criminal Justice Committee, said he was concerned about the inmate deaths but wanted to examine the circumstances of each. He said he was not sympathetic to complaints about a lack of air-conditioning, partly out of concern about the costs, but also out of principle. 
“Texans are not motivated to air-condition inmates,” he said. “These people are sex offenders, rapists, murderers. And we’re going to pay for their air-conditioning when I can’t go down the street and provide air-conditioning to hard-working, taxpaying citizens?”

That statement seems strangely disconnected on several fronts. First, about half of inmates in Texas prisons are nonviolent offenders, so the schtick about "sex offenders, rapists [and] murderers," makes for a good sound bite but isn't universally applicable. The fellow whose wrongful death suit was filed last week, for example, was convicted of forgery. Further, as of 2009, 89% of owner-occupied homes nationally and 98% in the South  had air conditioning*, so most "hard-working, taxpaying citizens" already have AC. Also, Texas does provide assistance with electric bills when the summer heat spikes, though it does so less frequently after the Legislature last year raided the special fund collected for that purpose. And of course, in the free world excursions to the library, public swimming pools, the supermarket, movie theaters or other air conditioned venues can provide respite from hot conditions. Somebody stuck in a cell with no windows, "sitting in an oven," as Judge King put it, has no such option.

I do agree with Sen. Whitmire, though, that a majority of Texas voters likely would not choose to pay to cool prison units if you asked them, but so what? These are federal lawsuits alleging a violation of constitutional rights. I'd never expect the Legislature to address the problem of their own accord, but if the courts decide the state must provide relief, poll numbers won't matter much. 

* Source: American Housing Survey (pdf), 2009, p. 17. Nationally 82% of renters had AC, but regional data is unavailable. Rentals made up 31.6% of occupied housing units in 2009.

Will Texas expand Medicaid coverage under Obamacare to include prisoners' hospital costs?

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The Internet today, naturally, is abuzz with commentary about the US Supreme Court's ruling upholding most of "Obamacare" but giving states the right to opt out of the Medicaid-expansion piece without losing federal funds they already receive. Now that the court has ruled, Grits thought it worthwhile to iterate the questions raised implicating Texas criminal justice spending. Specifically, will the now-optional state Medicaid expansion happen in the Lone Star state, and will it include hospital care for Texas prison inmates?

The answers could determine whether the Texas Lege can reduce the line item for prison health spending in the next biennium, or if they must increase it by a nine-figure sum. Here's how Stateline.org described the new option to cover state prisoners' hospital bills under the federal Affordable Care Act:

most state prisoners (currently) do not qualify for Medicaid. That's because all but a few states limit Medicaid  to low-income juveniles, pregnant women, adults with disabilities and frail elders.  The majority of people in lock-ups are able-bodied adults who do not qualify, even on the outside.  In 2014, however, when Medicaid is slated to cover some 16 million more Americans, anyone with an income below 133 percent of the federal poverty line will become eligible. Since most people have little or no income once they are incarcerated, virtually all of the nation’s 1.4 million state inmates would qualify for Medicaid.

As a bonus to state corrections agencies, most inmates would be considered new to Medicaid, making them eligible for 100 percent coverage by the federal government between 2014 and 2019. After that, states would be responsible for only 10 percent of their coverage. In addition, state health insurance exchanges—which are required to be functioning by 2014—would make it easier for corrections departments to sign inmates up for the program.

So the question arises: Will the Texas Legislature expand Medicaid in 2014, or will the state thumb its nose at the new law and abstain from accepting additional federal healthcare money? Given that the feds would pay 100% of the costs until 2019, not to mention the fact that expanding Medicaid would allow the state to pawn off a great deal of prisoner healthcare costs on the feds, there will be terrific fiscal temptation to accept the subsidies. OTOH, Governor Rick Perry, Attorney General Greg Abbott, and many Republican legislators have staked out extremist positions against Obamacare, and the state could choose to reject the money on principle. That's a bit like cutting off one's nose to spite one's face, since Texas taxpayers would then be in the position of subsidizing healthcare in other states while failing to receive any of the benefits, not just in expanded coverage for free-world Texans but in reduced state prison health costs.

Though the feds will substantially up their subsidies in 2014, covering inmate hospital care through Medicaid is something some states are already doing. Reported Stateline.org, "Dr. Gloria Perry, the chief medical officer for the Mississippi prison system, says her agency heard about the cost-cutting measure from a health care vendor looking for business in the state. The agency then verified the legality of the procedure with the state Medicaid office and quickly created a reimbursement program. No state laws or appropriations were required."

Given the US Senate's filibuster rule, where 60 out of 100 votes are needed to pass legislation, I don't see the federal healthcare law being repealed even if Mitt Romney is elected President and Republicans reclaim the US Senate, despite a great deal of chest pounding to the contrary on the campaign trail. The battle over implementing federal healthcare legislation has now shifted inexorably to the states.

Whether Texas will accept billions in federal subsidies to expand Medicaid as envisioned under Obamacare will be one of the biggest political debates of the 83rd Texas Legislature. And at the end of the day, Grits wonders whether the deciding factor won't be the new law's effect on prisoner health care costs. 

RELATED (6/29): In the Fort Worth Star-Telegram, columnist Bud Kennedy had some kind words to say about this item. "Of all the blog posts and blather Thursday on both sides of the Supreme Court case, one of the most incisive comments came from Austin criminal justice blogger Scott Henson," he wrote, concluding, "I give him credit for thinking before shouting."

Regrettably, though, there was an error in Kennedy's recitation of the effect of Medicaid expansion on state prison healthcare costs. He declared that "the federal government would pick up 90 percent of the state's nearly $500-million-per-year prisoner healthcare costs." In fact, as Grits understands it, the Medicaid expansion would only cover hospital costs for prisoners, not in-prison clinics or other health services delivered on-site. That would still be a quite-large sum, but Medicaid would not cover all prisoner health costs.

According to a state auditor's report (pdf) published in 2011, hospital services account for about $16% of Texas prison health costs - roughly $150 million per biennium. Also, Texas runs its prison pharmacy through UTMB-Galveston's hospital system, but Grits can't tell without more research whether pharmacy costs would be covered by Medicaid under that scenario: It's possible. Notably, Texas underfunded prison healthcare in the current biennium by more than $100 million, so while Medicaid wouldn't pay for all prison health costs, it would plug the state's short term prison health deficit. Otherwise, the only way to reduce prison health costs in the state budget is to reduce the number of people Texas incarcerates.

Read more here: http://www.star-telegram.com/2012/06/28/4067482/on-healthcare-ruling-texans-offer.html#storylink=cpy
Read more here: http://www.star-telegram.com/2012/06/28/4067482/on-healthcare-ruling-texans-offer.html#storylink=cpy
Read more here: http://www.star-telegram.com/2012/06/28/4067482/on-healthcare-ruling-texans-offer.html#storylink=cpy
See prior, related Grits posts:

• Obamacare provision a boon to budget writers on state prison health costs but complicates UTMB negotiations 
• Banking on Obamacare for future prisoner hospital costs

Crime declines too big to attribute to police falsifying stats

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Whenever it's mentioned on this blog that crime rates have declined for the past two decades, a slew of anonymous commenters show up who claim that crime is just as high as ever but police are intentionally underreporting their data, or else victims have been scared away by a phantom "stop snitching campaign." Grits certainly doesn't deny that occurs - in fact instances have been well documented in places like New York City and Dallas. (The HBO drama The Wire famously portrayed this phenomenon as a recurring theme at the Baltimore PD.) But some data - like murders - are difficult to fudge. And surveys of crime victims - which are frequently compared to reported crime data to estimate the extent of underreported crime - consistently show crime drops as substantial as the reported numbers.

So I was interested to see via CrimProf blog this New York Times piece titled, "Crime report manipulation common among New York police, study finds" (June 28), which reported that "An anonymous survey of nearly 2,000 retired officers found that the manipulation of crime reports — downgrading crimes to lesser offenses and discouraging victims from filing complaints to make crime statistics look better — has long been part of the culture of the New York Police Department." One survey respondent put it this way: “Assault becomes harassment, robbery becomes grand larceny, grand larceny becomes petit larceny, burglary becomes criminal trespass.”
 
NYPD responded by attacking the study's credibility: “The latest report from Eterno and Silverman appears designed to bolster the authors’ repeated but unsupported claims. ... The document provides no explanation of how the survey sample was constructed.” NYPD says the survey contains a sampling bias because those surveyed are self-selected. The surveyors didn't attempt to construct a valid sample group, the way pollsters conduct surveys of voters, for example, but instead calculated data from respondents who self-selected and may represent the views of an outspoken, disgruntled subset. Basically NYPD is saying the survey is invalid for the same reason one can't compare internet polls to those conducted by pollsters using statistically valid sampling techniques.

New York City has reported an 80% drop in major crimes, according to the Times,  so if the decrease is really due to fraud by officers downgrading charges, that's a massive conspiracy, and IMO an unlikely one. I don't doubt that virtually every large department succumbs to pressure to fudge crime statistics to some extent, but that would only affect the numbers at the margins. The massive crime reductions recently witnessed IMO can't be explained by manipulating crime stats. The Times story concluded giving voice to a view much closer to Grits' own:

research conducted by Franklin E. Zimring, a criminologist at Berkeley Law School, that compared the department’s crime data for homicide, robbery, auto theft and burglary to insurance claims, health statistics and victim surveys and found a near-exact correlation.

In an interview Wednesday, Mr. Zimring said his research found that the 80 percent decrease in those four crimes reported by the department from 1990 to 2009 was “real.”
He said that there was always “some underreporting, and there is some downgrading in every police force that I know of,” but that his research showed that any manipulation was too minuscule to significantly affect the department’s crime statistics.

There are a number of powerful political constituencies who consider falling crime rates more of a problem than good news: Police unions, elected DAs and career prosecutors, prison systems and their employees - all of them see job security in rising crime rates and risk to their budgets in acknowledging crime has fallen. None of them want to admit such a motive, which is why on this blog such claims are only ever made by anonymous trolls unwilling to attach their names to their opinions and unable to support them with anything but supposition and anecdote. Even if police downgrade thefts on police reports, for example, the number of insurance claims filed wouldn't show a corresponding drop unless there were actually fewer thefts. And while police surely have incentives to downplay crime, respondents to crime victimization surveys (which do use statistically valid sampling techniques) have no reason to falsely downplay crime.

That said, all crime data is imprecise because of both victim over- and under-reporting as well as differences in reporting methodology, accuracy and completeness among departments. So it's easy (and frustratingly common) to misinterpret short-term trends and unwise to draw conclusions without several years of data for comparison. Grits often thinks many folks' expectations of reported crime data are simply too high: They can tell us broad trends but will never capture every jot and tittle of crime that occurs. Taken together with other sources, though, they paint a convincing picture of unprecedented and IMO undeniable long-term crime reductions over the past 20 years.

Warning drivers of speed trap gets Houston woman arrested for contempt of cop

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When my father first taught me to drive back in East Texas 30 years ago, he passed along a practice that used to be common in more rural areas but which I haven't seen much in bigger cities: Flashing one's headlights to let ongoing traffic know they're coming up on a speed trap. My Dad considered it common courtesy, justified because the ostensible point of a speed trap (besides revenue generation) is to get people to slow down, so if private citizens warn their fellow drivers, they aren't doing anything more than contributing to the goal of reduced lawbreaking.

Given that personal history, I can't help but pity poor Natalie Plummer, who was arrested last week in Houston for holding up a sign warning drives of a "speed trap" ahead on a street in downtown Houston. Here's KTRK-TV's coverage:



The officer told Ms. Plummer that she was being arrested for felony obstruction of justice that carried an penalty of 3-5 years. When she was taken to jail, though, she was only charged with "walking in the roadway where there is a sidewalk present," an allegation she says is a lie: Plummer insists she was standing on the sidewalk holding the sign, and when you watch the video with cars whizzing by, it seems unlikely any reasonable person would stand in the street with the sidewalk right there.

One has to wonder, if this were a young black man in the 5th Ward instead of a young white woman biking home from the Whole Foods, would media outlets even consider this news?

Of course, the main reason the officer didn't file felony obstruction charges against Ms. Plummer is that no such law exists. The closest thing on the books I know of is Sec. 38.15 of the Penal Code, "Interference with Public Duties," which is a Class B misdemeanor. But that statute includes a specific exception which should be well-known to any traffic cop. The law states that "It is a defense to prosecution ... that the conduct engaged in by the defendant was intended to warn a person operating a motor vehicle of the presence of a peace officer who was enforcing" traffic laws.

Further, "It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only," which clearly would apply to holding up a sign. Ms. Plummer wasn't arrested for violating any law and I'd bet dollars to donuts she wasn't standing in the street: She was arrested for "contempt of cop," and the fact that there's no such law on the books didn't stop her from going to jail for it.

How much do you wanna bet it will turn out the officer's dashcam malfunctioned and failed to capture his conversation with Ms. Plummer? This episode exemplifies the adage enshrined in this blog's masthead: You might beat the rap, but you won't beat the ride.

Clarence “Burley” D. Scroggins (2 Obt 1028 - 24 Dec 2011) [38182]

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St. Joseph News-Press, 25 Dec 2011
Clarence D. Scroggins Sr.
1928-2011

 EASTON, Mo. — Clarence “Burley” D. Scroggins Sr., 83, of Easton, passed away Saturday, December 24, 2011, at his home. He was born October 2, 1928, in Neosho, Mo., son of Mary and Jonah Scroggins.

He worked at the Lee Stafford Quarry for 37 years, and St. Joseph Fuel Oil Co for 20 years. He loved to fish, hunt and play poker, but most especially spend time with his family which was his number one priority.

Burley was preceded in death by wife, Frances Scroggins [38181]; his parents; a son, Clarence Dennis Scroggins Jr. [50655]; a granddaughter, Penny Embrey; two sisters, Ruby Gray, and Alta Mackley; and his lifelong friend, Tom McCarthy.

Survivors include four daughters, Debbie Scroggins [50655], Toni Shuman and companion, Chester Kerns, Judy (Frankie) Munger, all of St. Joseph and Cindy (Archie) Tracy of Dekalb, Mo.; a son, Jim [44106] (Rochelle) Scroggins of Easton; 12 grandchildren; 20 great-grandchildren; eight great-great-grandchildren.

Funeral services will be conducted at 11 a.m. Tuesday, December 27, 2011, at Rupp Funeral Home, with Pastor Bill White officiating.

The family will receive friends from 6 to 8 p.m. Monday, at the Rupp Funeral Home. The Interment will be at the Odd Fellows Public Cemetery.

Online condolence and obituary at www.ruppfuneral.com

Dorothy Jean Jeffers Scroggins Allen (12 Jan 1932 - 25 Dec 2011) [36348]

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Dorothy Jean Allen, Grove Sun, The (OK) - December 28, 2011 [NewsBank]

Grove Sun, The (OK) - December 28, 2011
Deceased Name: Dorothy Jean Allen
Dorothy Jean Allen, 79 year old, Grove, Oklahoma resident passed away Sunday December 25, 2011, following an extended illness.

Dorothy was born on January 12, 1932 in Neosho, Missouri to Lloyd Edward Jeffers [36349] and Viola Esther (Land) Jeffers [36348].

Dorothy worked for many years at the Grove High School and was the supervising custodian. She also worked at Day Care Building Blocks as a cook and grandmother. She attended First Christian Church in Grove, Oklahoma. Dorothy was an avid shopper, who loved to go to garage sales, but above all Dorothy loved her family.

Dorothy was preceded in death by four brothers Bruce Jeffers, Edward Jeffers, Jerry Jeffers, and Robert Jeffers, a sister, Betty Jeffers, two husbands James David Scroggins [34406], and Edmon Allen, and a long time friend, Lorene Branson.

Dorothy is survived by three sons, Robert Scroggins , of Granby, Missouri, Ronnie Scroggins of Neosho, Missouri, and Randy Scroggins of Joplin, Missouri, four daughters, Virginia Johnson, of Neosho, Missouri, Cheryl Harding, of Grove, Oklahoma, Teresa White of Goodman, Missouri, Sandy White of Grove, Oklahoma, and Cindy Coker of Bonner Springs, Kansas, thirty five grandchildren, forty three great grandchildren, and one great great grandchild.

Funeral services for Dorothy will be held at 1:00 p.m. on Friday December 30, 2011 at the 1st Christian Church in Grove, Oklahoma, Interment will follow at I.O.O. F. Cemetery in Neosho, Missouri.

A visitation for Dorothy will be held from 5:00 p.m. to 7:00 p.m. on Thursday, December 29, 2011 at the Worley-Luginbuel funeral Home in Grove, Oklahoma.

Online condolences may be left at www.honoringmemories.com

Services are under the direction of Worley-Luginbuel Funeral Home, Grove, Oklahoma.

Grove Sun, The (OK)
Date: December 28, 2011
Author: Staff Writer
Record Number: 5ff958f4dce7477c69931b206571612e3c5
Copyright © 2011 The Grove Sun, American Consolidated Media. All rights reserved.