Punishment increase crowd rides emotion, downplays budgets

If you want to understand the pressure on legislators to increase prison punishments in order to "solve" crime, go listen to the first few hours of yesterday's Texas House Criminal Jurisprudence Committee, where dozens of speaker testified on behalf of legislation to increase the penalty for burglary of a vehicle from a Class A misdemeanor to a state jail felony. (That's burglary of items in a vehicle, not auto theft.) Chairman Terry Keel, who expressed concern that legislators were proposing penalty increases without admitting to the financial consequences, predicted some version of the idea would pass this session.

One can learn many things about Texas' criminal justice system from critically observing that hearing, not the least of which is that the urge to increase penalties in response to crime is a bi-partisan pastime. Republicans and Democrats filed similar bills increasing penalties on the first or second offense. From the testimony, the real problem is a small number of career thieves who may be caught several times. Democrat Aaron Pena filed a somewhat more reasonable bill targeting them that would increase the penalty only on a third offense.

Perhaps the most fascinating aspect of the hearing was as a case study of how unintended consequences can arise from well-intentioned acts. That's because the tough-on-crime crowd takes a purely atomic view. There were basically two classes of pro-penalty-increase messages delivered to the committee. From the public, business owners, theft victims, etc., legislators heard, "I'm angry, do something." And from law enforcement folks they heard over and over, "We need more tools." Neither of those groups, however, were able to explain how or if increasing the punishment for this crime -- which can be as minor as stealing a CD through an open car window, not always "smash and grab" episodes -- would prevent what is essentially a crime of youth and opportunity.

Testimony revealed that three theft convictions can already be enhanced (i.e., prosecutors may increase the charges) to a felony for career car burglars, but the law is seldom applied. The current penalty for Class A misdemeanors allows for up to a year in county jail, but witnesses said local courts aren't sentencing convicted vehicle burglars to those max sentences right now. Rep. Terri Hodge kept wondering, and nobody had a good answer, why law enforcement thought making the crime a felony would solve anything, when they weren't fully utilizing the "tools" currently authorized?

Over the course of the hearing, though, the reason became clear. Bottom line: county jails are full, just like state prisons. Counties can't afford to incarcerate low-level burglars. But neither can the state of Texas. So the locals basically want to pass the buck. Counties aren't willing to raise local taxes to build more jail space, so they want prisoners sent to state jails so they won't have to pay for them. That's the same problem with taking an atomic view, though -- it's all the same taxpayers..

Nor did any speakers who favor penalty increases tell the committee which prisoners should be taken out of the system -- i.e., the types of crimes for which they should LOWER penalties -- in order to incarcerate more vehicle burglars in state jails. Certainly nobody proposed letting out any current prisoners to make room. Indeed, the state's overincarceration crisis was mentioned mainly by proponents in the context of asking that it be ignored. This wasn't a hearing about big picture policy issues.

We live in a narcissistic society, and one of the truisms blogging teaches us is that everybody thinks their story important (in this case, dozens of folks thought so, repetitively, for several hours). These anecdotes don't tell the whole story, though. For every professional burglar who targets apartment complexes, there are probably three young stupid kids who made mistakes, and labeling all of them "felon" without distinction just doesn't make sense. Texas already has labeled 1,941 separate acts as "felonies" -- this would make 1,942 -- and a whopping one in 11 Texans today already has a felony conviction that limits their employment, housing and even volunteer opportunities. Do we really want to expand that population by the number of kids who steal a CD out of a car?