Blogging has been light, admittedly in part since I ‘discovered’ iTunes, but this favorite Tom T. Hall gem made me think about bologna sandwiches in the Travis County Jail. After being arrested for speeding while ‘sitting at a red light’, the narrator discovers the pleasures of what can only be small southern town 60s or 70s justice:

Well, they motioned me inside a cell with seven other guys
One little barred up window in the rear
My cellmates said if they had let me bring some money in
We ought to send the jailer for some beer

Well, I had to pay him double ’cause he was the man in charge
And the jailer’s job was not the best in town
Later on his wife brought hot bologna, eggs and gravy
The first day I was there I turned it down

Well, next morning they just let us sleep but I was up real early
Wonderin’ when I’d get my release
Later on we got more hot bologna, eggs and gravy
And by now I wasn’t quite so hard to please

I sometimes ask clients what they were given to eat during their overnight stay at Downtown Travis County, and while the majority insist they weren’t in the mood to eat at all, many of them tell me it was bologna sandwiches, sometimes with cheese, sometimes with a small cup of jello.

My theory is that the Travis County Sheriff’s Office deliberately makes the stay unpleasant. My clients tell me they run into some recently arrested that act like they were there last weekend, and expect to end up in jail the week after that. 

I doubt the bologna has much effect on them. But for the others? You can beat the rap, but you can’t beat the ride.

From Wednesday’s Austin American Statesman, Sheriff defends allowing immigration officials to have office at jail:

Travis County Sheriff Greg Hamilton encountered sharp criticism and a smattering of support Tuesday for his decision to allow federal immigration agents to establish an office at the Travis County Jail.

At two public forums, Hamilton defended the decision, saying the sheriff’s office is simply allowing U.S. Immigration and Customs Enforcement to use a side office in a jail in which its agents have been working for 30 years. He denied the charge that the sheriff’s office is enforcing federal immigration law or facilitating racial profiling.

"I take offense to (critics) saying we’re racial profiling," Hamilton said. "This is a public safety issue."

There are several issues in play here, but the one that interests me the most is this: how does the Travis County Jail (or I should say Sheriff’s Office) make the initial determination that someone is – or may be – an illegal immigrant?

As I’ve pointed out before, criminal defense lawyers in Austin as a group have probably all had the occasional experience where their client has an INS hold on them, even though they are an United States citizen because of their last name.

Surname profiling (i.e., a ‘hispanic’ surname leading to an INS hold) is a more accurate phrase perhaps than racial profiling, but it is unacceptable. Period.

I don’t care if it only takes a few hours, or a few days to ‘clear up the problem’ and release the hold. Any extra time incarcerated because a law enforcement agency thinks you might be here illegally is unconstitutional.

One last thing: the great thing about taking this angle on the argument is that you can bypass all the idiotic arguments made on the other side, for different reasons. I feel certain that the super majority of the public in Austin would be horrified to know that such a thing can happen – and would oppose ICE moving into the jail, on this basis alone.

The Austin Criminal Defense Lawyers Association listserv has been buzzing the last week or so. Local defense attorneys had noticed a much higher rate of immigration holds being placed on clients. Was this a trend?

And today, the Austin American Statesman brings us the answer, “Sheriff to let federal immigration agents set up office in jail. Agents will look for undocumented immigrants.”

Travis County Sheriff Greg Hamilton has agreed to let federal immigration agents set up an office in the county jail to more often monitor whether inmates booked into the downtown facility are legally in the United States.

Hamilton said this week that agents from the U.S. Immigration and Customs Enforcement agency will likely be stationed in the jail 24 hours a day, seven days a week in coming months. They began increasing their presence in the facility late last year.

Until recently, federal officials said agents only occasionally visited the jail to check the immigration status among inmates but sought more access from Hamilton.

The increased presence has led agents to double — if not triple — the number of "immigration holds" it has traditionally placed on Travis County inmates for possible deportation, said Adrian Ramirez, assistant field office director for the San Antonio office of the federal immigration agency, whose region includes Austin.

Immigration and Customs Enforcement, aka ICE, will indeed be moving into the Travis County Jail. 

Whichever way you feel about the new policy, this line in the article jumped out at me:

Agents may place an immigration detainer on the inmates if they suspect they are undocumented immigrants. [Emphasis added]

I’ll bet I’m not the only criminal lawyer in Austin that knows what “suspect they are undocumented” means. It means ‘having the wrong name’.

This isn’t some sort of wild accusation either. I’ve seen federal INS detainers placed on United States citizens. Combining the first names Juan, Jose, Miguel, Manuel, etc. with the last names Diaz, Lopez, Hernandez, Rodriguez, etc. is the most likely way for ICE to ‘suspect’ someone may be undocumented.

Oh, and by the way, how long does it take to remove an unlawful INS detainer from a U.S. citizen? Several extra days in jail, at least. Sometimes longer.

The recent series of posts over at Grits for Breakfast regarding phone sytems in jails started with a nod to NPR’s recent segment called “Inmates Smuggle In Cell Phones with Ease”.

In the comment section to that post, readers referred to a Brazoria County case where a Texas inmate was given a forty year stacked sentence for unauthorized possession of a cell phone in a correctional facility.

Since I am a Texas criminal defense lawyer, and therefore familiar with our system of over punishment for minor offenses, I assumed the story was, unfortunately, not just apocryphal. One quick google search later, I find the story archived in Brazoria County’s “The Facts”. Here are quotes from the prosecutor responsible for the case, and one of the prison officials involved:

While the offense might seem minor on the surface, authorities said the phone can present a grave danger in a prison.

“You can coordinate crime from the inside out,” Brazoria County District Attorney Jeri Yenne said. “It is a significant safety issue. You can actually engineer murder from the inside and say you were (in prison).”

Darrington authorities have seized about 75 cellular phones in the last year, Warden Arthur Velasquez said.

It could lead to murder? Well, how about this: $30,000 per year to incarcerate times 40 years times 75 inmates is $90,000,000.00. Yes, that’s right, ninety million dollars. And that’s just for one of Texas’ many prison facilities.

I imagine the truth is that this particular inmate probably got on someone’s bad side to actually be prosecuted for this; I’m sure it’s not actually a regularly prosecuted offense. Still, is this what we really want our tax dollars going towards?

John Kelso’s humor column about why the Travis County Jail won’t adopt Mason County’s “pink jumpsuits for inmates policy” provides me with a viable Austin segue for the recent criminal law blogosphere’s discussion about shaming punishments.

Doug Berman is in favor of them, at least when the only alternative seems to be meeting out unreasonably long sentences.

Corrections Sentencing points out the two motivations behind shaming: teaching the offender to contemplate his place in the community vs. vindictive self righteousness. I agree that it’s a fine line.

Poverty Lawyer questions the fairness of publishing photos (pretrial, mind you) of johns caught in prostitution stings.

Dan Markel argues in The Economist that shaming punishments undermine human dignity, and follows up with a seven part series about them.

The comments section alone of Orin Kerr’s contribution to the discussion at Volokh would make for a good day’s worth of reading.

My take on it? Let’s read a quote from the Houston Chronicle’s story on the pink jumpsuit controversy:

Three county inmates in the jail here lay on their bunks, not saying much.  They wore pink jumpsuits and pink slippers, and one was wrapped in pink sheets.  They were surrounded by pink bars and pink walls.  They were not comfortable.

Despite the cramped condition of the tiny jail, the inmates said sitting there was better than working outside, where they might be seen by people they know.  Using pink uniforms in a pink jail is a small step to deter inmates from ever wanting to spend more time in the Mason County Jail, which might be getting too old to operate, said Sheriff Clint Low.

"The county would have more inmate labor without them," said one inmate, who did not want to be identified. "I’m not going outside in these things. It’s a good deterrent because I don’t want to wear them anymore."

This is a complex issue, and this quote provides us with reasons pro and con, and in just a few short sentences.  The inmates express their intent to never return to jail, but to the extent that they refuse to participate in a work program that would get them released earlier.  How bad could sitting in that pink jail be, if it’s better than being supervised outdoors picking up trash in return for days, weeks or even months off their sentence?

I’m not sure the value lost in trustee labor (to both the community and the defendant) is worth the future deterrent effect these inmates are predicting.  All inmates I’ve ever met have expressed their intentions to never return.  

But, if we’re talking about alternatives to unreasonably long prison sentences for non violent offenders, I’m open to almost any other option available…

Paul Armentano, senior policy advisor for NORML, writes an article in The Examiner about the recent Department of Justice Report “Drug Use and Dependence, State and Federal Prisoners, 2004”.

The new report is noteworthy because it undermines the common claim from law enforcement officers and bureaucrats, specifically White House drug czar John Walters, that few, if any, Americans are incarcerated for marijuana-related offenses. In reality, nearly 1 out of 8 U.S. drug prisoners are locked up for pot.

Of course, several hundred thousand more Americans are arrested each year for violating marijuana laws, costing taxpayers another $8 billion dollars annually in criminal justice costs.

He goes on to comment that this figure does not include county jail inmates.  Since probably most marijuana related incarceration is of the misdemeanor variety, I’m sure this actually seriously mis-underestimates the cost to us as taxpayers.  In Austin, most marijuana offenders sentenced to incarceration (i.e. not probation) will spend all of that time in the Travis County Jail.  I don’t have the statistics, but I’m sure it’s the same in most or all Texas counties.

I’ve long been a believer that educating folks about the financial costs of the drug war may be what ends up convincing politicians to eventually reform our drug policy. Thankfully, here in Austin, first time misdemeanor marijuana offenders are eligible for Pre-Trial Diversion.  This program leads to a dismissal with counseling and community service.  Also, it results in a savings to the community, as well as just being the right thing to do with a first time marijuana offense.

Noting the large percentage of Americans who self-report marijuana use at some point, I have to agree with Armentano’s conclusion as well: “It makes no sense to continue to treat nearly half of all Americans as criminals”.