Sunday, December 17, 2006

Lawyers, Guns and Money: House Criminal Jurisprudence Committee releases interim report

Since the Texas Legislature only meets 4.5 months every two years, during the "interim" standing committees in each chamber study more complex issues and make recommendations for legislative reform. The main committees covering criminal justice topics in the House are Criminal Jurisprudence, Corrections, Law Enforcement, and Judiciary.

Interim reports from Texas House Committees are out, and I thought I'd run through the ones related to criminal justice, starting with the House Criminal Jurisprudence Committee's report (pdf). With Committee Chairman Terry Keel leaving the House after an unscuccessful bid for a statewide judicial post, this interim report was basically his last legislative hurrah before returning to his private law practice. (Good luck, Chairman Keel.) Let's run through the report's high points:


The committee report contains a lengthy discussion of "restitution" and its role in jurisprudence written by academics at the Crime Victims Institute at Sam Houston State University in Huntsville. Their analysis builds on some of the work by the Texas Public Policy Foundation and ideas proposed in Texas by various prison ministries. But their recommendations - more study and expanding who can be compensated from the victims compensation fund - don't go nearly as far as TPPF and others have suggested. I was disappointed that after the lengthy analysis, and given the state's looming overincarceration crisis, they didn't go further toward promoting restitution as an alternative to incarceration.

The idea of restitution as punishment for theft goes back all the way to Mosaic Law, where the standard punishment for theft was to repay the victim double what was stolen. Ironically, to this day in Texas, while individuals are routinely sentenced to jail or prison for theft, when corporations commit crimes they can either be sentenced to standardized fines, or, at the judge's discretion, "the court may sentence the corporation or association to pay a fine in an amount fixed by the court, not to exceed double the amount gained or caused by the corporation or association to be lost or damaged, whichever is greater." (TX Penal Code Sec. 12.51)

In other words, when incarceration isn't an option (since a corporation is a legal entity that can't be incarcerated - e.g., Jeff Skilling can go to prison, but Enron can't), Texas law to this day follows Moses' dictum that repaying double what was stolen constitutes justice. TPPF has suggested ways to more aggressively use restitution schemes to supplant incarceration for non-violent property offenses, benefitting victims and reinforcing postive values for offenders as well as punishing them for negative ones.

Discovery in criminal courts

(UPDATE: More from Austin Criminal Defense Lawyer.)

The committee also looked at the topic of "reciprocal discovery" - i.e., allowing pre-trial discovery in criminal cases the way parties operate in civil trials. A Democrat-dominated subcommittee was appointed to look at the question, but they punted on making any recommendations.

The real problem with "discovery" isn't the lack of reciprocity - it's that many DAs don't make files available to criminal defense counsel, and policies vary from county to county. Prosecutors are required to disclose "Brady" material, which is essentially exculpatory evidence, but as you might imagine DAs and defense lawyers can have wildly varying views on what constitutes exculpatory. In some counties, like Tarrant or Wichita, DAs have an "open file" policy where defense counsel are allowed to see all evidence the state has accumulated against their client. In other counties, like Harris, you'd basically need a ski mask and a shotgun to gain access to those files.

The reform needed here isn't "reciprocal discovery," but simply to mandate that all Texas prosecutors maintain an "open file" policy to let defense counsel view and make copies of any documents they deem relevant to their defense. The system works well where it's been implemented, and where it hasn't it's a source of constant grousing and wasted time for the already clogged courts.

"The Castle Doctrine": No Retreat Before Self Defense

Easily the most controversial of the committee's recommendations was its support for allowing use of deadly force to defend one's home or vehicle, overriding a court-generated requirement that force only be used when a reasonable person wouldn't "retreat." Similar legislation was passed last year in Florida, and the topic is a priority this year for the NRA and the Texas State Rifle Association.

I support this change, mainly because once you're retreating, it's hard to fire a pistol over your shoulder.

But the addition of vehicles to the "castle doctrine" is an interesting twist, mostly because of legislation Chairman Keel sponsored last session aimed at allowing legal gun owners to carry a stowed weapon in their personal vehicle. The interpretation of that new law is in dispute and will likely be a topic for debate during the 80th Texas Legislature - there appeared last year to be wide support at the Lege for letting people carry legal firearms in their car. Taken together with this suggestion, the Legislature would essentially be saying you have a right to carry a gun in your car and the right to use it if anyone uses deadly force against you, with no duty to retreat.

Personally I don't have a problem with that - if I've got a legal gun with me and you try to hijack my car, I'd probably blow your head off. And where would you retreat to, anyway? The back seat? But I'll bet the police associations and DAs will throw a conniption fit at the idea that the public might protect themselves instead of relying on them to do it. We'll see, but that's my prediction where the main opposition to this bill will come.

Nuisance Abatement

Finally, the committee joined with the House General Investigating Committee to issue a lengthy joint report on the subject of nuisance laws, particularly their enforcement in Dallas. This was a hobby horse of Chairman Keel's last session. The full joint report is here, for those who are interested.

I won't go into detail on this subject except to note with interest the first recommendation of the joint report that "legislation should be considered regarding the propriety of a city using criminal activity that was brought onto a property by law enforcement" as part of undercover operations "when that city takes action against that property under Chapter 125 Civil Practice and Remedies Code." That's interesting - the city creates crime on a property owner's premises through an undercover drug transaction, then fines them under nuisance codes using the police-generated crime as evidence. Talk about doubly f*#ked!

See the full interim report. More soon analyzing reports from the other criminal justice-related committees.


Anonymous said...

You say: "I support this change [to eliminate the duty to retreat before defending one's home or vehicle] mainly because once you're retreating, it's hard to fire a pistol over your shoulder."

First, the duty to retreat is not a duty to backup. It's a duty to avoid the use of deadly force where a reasonable person would do so. See Westbrook v. State, 846 S.W.2d 155, 157-58 (Tex.App.-Fort Worth,1993, pet. ref'd) ("the instruction and application given required the jury, in deciding the issue on self-defense, to determine whether the appellant, at the moment, could have avoided the use of deadly force by continuing to retreat").
If you can't reasonably avoid the use of deadly force -- as in your car example -- then the duty to retreat will be satisfied. No one has any business using deadly force if they can reasonably avoid it.

Second, while I have no idea what the new legislation says, it would seem that this change has already been made with regard to one's home. Are they just expanding the "committing an offense of unlawful entry" language?
-----Tex. Penal Code sec. 9.32---

(a) A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other under Section 9.31;
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor.

Gritsforbreakfast said...

that first line you mention was a joke. Obviously not an entirely funny one. :)

And IANAL, but I think that's right about expanding the language you cite, including expanding it to personal vehicles. I'd encourage you to read the full text of that section of the report for more, including proposed bill language at the end of that section.

Anonymous said...

The bill takes away the language requiring a person to act "reasonably" when using deadly force. It strikes this:

[if a reasonable person in the actor's situation would not have retreated; and]

That would no longer be in the law.

Isn't that kinda scary?

Gritsforbreakfast said...

The question is, in the face of deadly force, why should a bunch of politicians or even jurors get to second guess what's a reasonable time to retreat? That's a split-second judgement call. The rest of the law requires it be used only to protect themselves or others against an "immediate" threat involving unlawful deadly force, or to stop the commission of very specific crimes. That's narrow enough, to me, to limit legal self-defense to situations where I wouldn't necessarily feel comfortable judging when someone should "retreat."