Based on a years-old seminary program in Louisiana, the Texas program was spearheaded by veteran Texas Sen. John Whitmire (D-Houston) and tea party favorite Texas Sen. Dan Patrick (R-Houston). As the Austin American-Statesman’s Mike Ward reported Saturday, the seminary won’t receive state funding, but will be sponsored by the Southwestern Baptist Theological Seminary in Fort Worth, the Southern Baptists of Texas Convention and the nonprofit Heart of Texas Foundation:

“The opportunity to provide education and growth for those in a prison unit … is the opportunity to enable these inmates to discover a significant new way that, through study, will change life, perspective and hope for hundreds,” Paige Patterson, president of the Southwestern Baptist Theological Seminary, said in a statement.

The Fort Worth seminary will provide teachers. The Heart of Texas Foundation, a prison ministry group based in Fulshear, is providing an $8,000 theological library.

The program is billed as non-denominational, but as the criminal justice blog Grits for Breakfast points out, the program’s sponsors aren’t known for religious openness. “The Southwestern Theological Seminary in Fort Worth was the site of a major fight between fundamentalist Baptist factions and less dogmatic religious scholars,” Scott Henson wrote on the blog, “including Russel Dilday, the moderate president who was ousted by fundamentalists in 1994 for not toeing the hardest possible theological line.”

The program “appears very sectarian in nature,” the Texas ACLU’s Dotty Griffith told the Houston Chronicle‘s Lindsay Wise. “Imagine the public outcry that would arise if the state were to partner with Muslim institutions and train them to be imams and turn them out to minister Islam to other inmates,” suggested Americans United for Separation of Church and State lawyer Alex Luchenitser.

The Chronicle reported the Heart of Texas Foundation has raised enough to cover more than a year of the program at $100,000 annually. After four years of study, according to the Statesman, inmates “will receive a bachelor of science degree and be assigned to other state prisons” where they can minister to other inmates.

At a Garland Tea Party gathering Friday night, Patrick related the origin story of the seminary program, which he said began when he convinced Whitmire to come tour the Louisiana program. Patrick also passed out DVD copies of a documentary he executive-produced with the Heart of Texas Foundation, and reproductions of his own watercolor painting of the Statue of Liberty with the face of Jesus Christ.

A watercolor painting by Texas Sen. Dan Patrick, R-Houston

“This is a problem-solving project that seeks to determine why so many kits are not being tested,” lead SHSU researcher William Wells said in a news release. “The goal is to create appropriate solutions that can be implemented and to determine if there are ways that forensic evidence in these kits can be used effectively.”

The research project is the first phase of a National Institute for Justice-funded study, focused on Houston law enforcement entities. The second phase of the NIJ study will focus on Wayne County (Detroit), Mich.

According to the news release from SHSU, about 4,000 untested rape kits are in the Houston Police Department’s Property Room. The NIJ study involves collaboration among SHSU, UT-Austin, HPD Crime Lab, HPD Juvenile Sex Crimes Unit, HPD Special Crimes Division, Harris County District Attorney’s Office and the Houston Area Women’s Center.

“Everybody is working cooperatively and collaboratively to figure out the problem and to find ways to correct it,” said Wells, who is an associate professor of criminal justice at SHSU. “We are all working toward a common goal: improving our nation’s responses to sexual assault.”

The Texas Department of Public Safety estimates there are about 22,000 untested kits just in Houston, Dallas and San Antonio, according to the Legislative Budget Board’s fiscal note for Senate Bill 1636 by state Sen. Wendy Davis (D-Fort Worth). The LBB estimates a cost of nearly $24 million over the next biennium to implement the legislation, based on numbers from those three cities. Before passage by the Senate, Davis added a provision that the legislation would be implemented only to the extent that funding is available.

Davis’ bill implements guidelines for new rape kits to be submitted for analysis and tested, before testing begins for older rape kits (in active cases since 1996).

Large numbers of untested rape kits — containing biological or trace evidence in cases of sexual assault — are not uncommon in cities throughout the country. An NIJ article reported 10,000 untested kits in Los Angeles, 12,000 in Dallas and 10,500 in Detroit.

“These research projects will enable us to better understand what happens to sexual assault evidence, why it might not be analyzed, and what we need to do to fix the problem,” said NIJ Director John Laub in the news release. “When sexual assault kits go untested, it can result in significant and unnecessary delays in justice for sexual assault victims.”

Another NIJ report delineated various reasons given for why rape kits go untested, including doubt of “probative value,” charges against suspects being dropped, suspects pleading guilty or issues of consensual sex.

According to the news release:

The new study also is expected to address other related issues in the criminal justice system, including funding for testing and DNA investigations; protocols for issuing a warrant if a DNA sample is found but doesn’t match a CODIS profile; and additional caseloads for prosecutors and public defenders.

Among some of the questions that will be examined in the Phase I study are:

•             Should all sexual assault kits be tested?

•             Is a triage method more effective?

•             How should victims be notified when the case is reopened after many years?

•             What kind of training should law enforcement receive to make the best decisions about sending sexual assaults kits to the crime lab?

Earlier this year, Wells and colleagues released a study on a different criminal justice issue facing the Texas Legislature, concealed carrying of handguns on college campuses. Led by SHSU criminal justice professor Jeffrey Bouffard, the survey of SHSU students and counterparts at a Washington university showed more students were uncomfortable about having guns on campus than were comfortable with the idea, the Texas Independent previously reported.

Holder was trying to reassure his many Republican critics, who insist that trying Khalid Sheikh Mohammed and his alleged al-Qaeda colleagues in a New York federal court is a “grievous mistake” that will endanger American citizens and undermine the “war on terror.”

But Holder’s statement was also eerily reminiscent of one made during the Bush administration by Pentagon General Counsel William Haynes — a statement which outraged Democrats and contributed to the resignation of the military’s top prosecutor.

In October 2007, Col. Morris Davis resigned from his post as military commission chief prosecutor, saying that he refused to report to Haynes. Davis later testified that he felt there was interference in his cases from Defense Department officials, citing specifically Haynes’ statement that “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.”

Haynes resigned several months later.

Davis, now a civilian, is still concerned about justice and the appearance of justice for Guantanamo detainees. He recently wrote in The Wall Street Journal that using both federal courts and military commissions to try terror suspects “is a mistake. It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”

One focus of the commission’s review, sponsors say, will necessarily be the sentencing policies surrounding the decades-old “war on drugs,” which critics argue has packed the nation’s prisons needlessly with non-violent offenders.

Some Republicans, however, are wary of taking any steps toward a legalization of drugs. And they’re lining up with amendments to prevent that from happening. Sen. Charles Grassley (R-Iowa), for example, has been weighing a provision that would prevent the newly formed commission from even studying the effects that drug legalization would have on the criminal justice system.

“The point is, for them to do what we tell them to do,” Grassley said Wednesday of the commission. “And one of the things that I was anticipating telling them not to do is to recommend or study the legalization of drugs.”

Asked by a reporter if his amendment would “have even stopped the discussion of legalized marijuana for medical purposes,” Grassley responded, “Yes, the extent to which it would be decriminalization, the answer is yes.”

The Webb-Specter bill has 35 co-sponsors, including Judiciary Committee Republicans Orrin Hatch (Utah) and Lindsey Graham (S.C.).

This excerpt below (I’ve omitted the citations) explains how the majority’s “conservatism” in this case became just a form of backwardness:

There is no denying that the Court is correct when it notes that a claim of right to DNA testing, post-trial at that, is a novel one, but that only reflects the relative novelty of testing DNA, and in any event is not a sufficient reason alone to reject the right asserted. Tradition is of course one serious consideration in judging whether a challenged rule or practice, or the failure to provide a new one, should be seen as violating the guarantee of substantive due process as being arbitrary, or as falling wholly outside the realm of reasonable governmental action. We recognize the value and lessons of continuity with the past, but as Justice Harlan pointed out, society finds reasons to modify some of its traditional practices, and the accumulation of new empirical knowledge can turn yesterday’s reasonable range of the government’s options into a due process anomaly over time.

It’s been said that Souter’s influence on the court has been limited because he doesn’t espouse grand theories or writing particularly memorable, quoteworthy passages. But that’s also been his strength, as it’s allowed him to convey clearly and simply what he believes the constitution requires, unclouded by the desire to impress or advance an ideological agenda.

Although these things are always hard to predict, Supreme Court nominee Sonia Sotomayor would appear to be a similar sort of justice — not particularly ideological, not flashy, but careful and open to the notion that interpretations of the constitution must progress along with advances in science and ethical mores.

To be sure, she’s been criticized for having denied a prisoner, Mark Descovic, the right to test DNA evidence after he was wrongly convicted of rape and murder, simply because his lawyer’s request came four days late. Not the most “empathetic” ruling, but then, the jury already knew Descovic’s DNA didn’t match that of the semen found in the victim; he was convicted based on his apparently coerced confession. He was eventually freed in 2006.

That’s the sort of ruling that could disappoint liberals who might think that fairness ought to have taken precedence over finality. As I’ve noted, Sotomayor’s prosecutorial background sometimes makes her a stickler for following the letter of the law rather than its spirit.

Still, one would hope that she, or any new justice, would be prepared to balance the values of continuity with progress in much the same way that  Souter did — or tried to — last week. To tip the balance on the court, however, that new justice will also have to be extraordinarily persuasive.

The Wall Street Journal reports today:

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee — a byproduct, they believe, of her tenure as a prosecutor.

Makes sense. She may also have been influenced by growing up in a poor and crime-ridden neighborhood in the Bronx. Whatever the reason, she could push the Supreme Court rightward in its rulings on rights of criminal defendants.

As the Journal’s Jess Bravin and Nathan Koppell write:

The Supreme Court’s five conservatives in January held that it was acceptable for prosecutors to use evidence seized by police who mistakenly thought they had a warrant to arrest a suspect.

Justice David Souter dissented, as did the other liberals on the court. But Judge Sotomayor, nominated to succeed Justice Souter, ruled in favor of the police in a similar case 10 years ago. In that case, the judge upheld an arrest and search that never would have happened if police and court officials had kept accurate records.

While it’s impossible to know how she would rule if a case like that came before her today, it does suggest a conservatism on an important issue that until now has been largely overlooked.

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On the one hand, Attorney General Eric Holder said yesterday that the guilty plea of Al-Marri, who for almost six years was held without charge as an “enemy combatant” in a Navy brig in South Carolina, demonstrated “The certainty that our criminal justice system can and will hold terrorists accountable for their actions.”

Indeed, Al-Marri, who says he was abused in prison but still pleaded guilty to providing material support to al-Qaeda, is a prime example of how suspects charged with serious allegations of terrorism, even if they’re mistreated, can properly be handled in the federal criminal justice system.

On the other hand, Gates’ statement to the Senate yesterday suddenly illuminated something I’d wondered about when the Obama administration sought dismissal of Al-Marri’s appeal to the Supreme Court. As I wrote then, President Obama seemed eager to hold on to an extraordinary executive power — that is, the power to hold a lawful U.S. resident indefinitely without charge on U.S. soil.  Of course, that would seem to be a flagrant violation of the Constitution. But the Obama administration, by transferring Al-Marri to the criminal justice system before the Supreme Court could hear his case, carefully avoided a high court ruling. (Remember these broad military powers inside the United States, and the suspension of the Bill of Rights, are the kind of thing John Yoo argued for in some of his more infamous Office of Legal Counsel memos.)

Now we understand why Obama wasn’t going to relinquish that right.  Because apparently, according to Gates’ statements, he’s prepared to use them — not on one prisoner, but on up to 100.

So far, Gates and the media seem focused on whether anyone in Congress will let the Defense Department build a new facility to house terrorists in their district. But I’m far more interested in who’s telling Gates that the United States is going to hold these men indefinitely without trial here in the United States, and why Gates — or Obama, or Holder — believe these men can’t be tried in U.S. federal courts.

As I wrote the other day, the emerging consensus among criminal justice experts is that terror suspects ought to be tried in ordinary federal courts, not in any specially-created military commissions, “national security courts,” or even in the military justice system. But then, they weren’t considering the possibility of not trying them at all. Most probably assumed that Obama, who made the grand gesture of announcing he was going to close Guantanamo Bay within his first days in office, wasn’t just going to set up another military detention center to do exactly the same thing here in the continental United States. Maybe I’m missing something, but I don’t see how that’s an improvement over Gitmo.

As Human Rights First lawyer Devon Chaffee said today, Al-Marris’ plea agreement “demonstrates that our existing, tried and true federal criminal justice system is where these cases belong. . . . The Obama Administration should follow the example it set in this case and bring Guántanamo detainees suspected of having committed a terrorism crime to justice in existing federal courts.”

Human Rights First in 2008 released a report, based on former prosecutors’ analysis of more than 120 international terrorism cases prosecuted in the federal criminal justice system, concluding that the existing federal criminal system is fully capable of prosecuting suspected terrorists.

Maybe Gates, and whoever he’s conferring with, ought to read that report.

Apparently the Immigration and Customs Enforcement agency, part of the Department of Homeland Security, didn’t clearly explain to local police that they were supposed to use their newfound authority to focus on serious criminals — drug dealers, gang leaders, murderers and the like.

Instead, the report finds, according to The Associated Press, which obtained advance copies (the GAO report was not available this morning — we’ll post as soon as it is) local law enforcement used racial profiling pick up people for speeding, carrying an open container and urinating in public.

The law in question authorizes ICE to train local and state law enforcement to use its databases to determine legal status and take the first steps in deportation proceedings, but it does not specify which kinds of illegal immigrants to focus on. Homeland Security Secretary Janet Napolitano has ordered a review of the so-called 287(g) program, named after the law that authorizes it. It grants authority to ICE to train local and state law enforcement to use its databases to determine the legal status of a suspect and take the first steps in deportation proceedings.

As of last October, 67 local and state law enforcement agencies in 23 states had signed agreements to participate in the program. Participation accelerated beginning in 2007, after Congress failed to pass comprehensive immigration reform.

Advocates, of course,  have been complaining about the problems with the 287(g) program for quite a while now.  In addition to hollering about Arpaio’s much-publicized abuses, which have led Democrats in Congress to call for a federal investigation, a report released last week by Justice Strategies finds that “Poor training and lack of oversight means that local authorities are not equipped to deal with the complexities associated with civil immigration law,” and often violate undocumented immigrants’ basic rights.  That’s not surprising, given that the immigration law allows for arrest without probable cause, indefinite detention, and provides no right to legal counsel.  The criminal justice system, on the other hand, isn’t supposed to tolerate that.

Put the two together, say many immigrants’ rights advocates, and you have a disaster on your hands.

This afternoon the House Committee on Homeland Security will hold a hearing on the 287(g) program and its failures.  I’ll report back after the hearing.