Thursday, February 15, 2007

Sex Offender Tuesday in House Criminal Jurisprudence

It looks like Tuesday is sex offender day in the Texas House Criminal Jurisprudence Committee. See their agenda here. What a heavy topic for their first day of real committee work!

When I see all these git-tuff proposals targeting child molesters and sex offenders, I can't help but think of James Waller, who was the 12th recent person exonerated in Dallas County by DNA evidence. Waller was convicted in 1982 of the rape of a child, and he was lucky there happened to be DNA evidence available to disprove his conviction 24 years later. Many such cases are made solely through eyewitness identifications, as in Waller's case, which are notoriously inaccurate.

Given Waller's case, as Texas prepares to make sentences for child molesters more "tough," I wonder why isn't more attention being paid to making sure the right person is being punished?

Sometimes it seems like public safety really isn't the goal. I mean, it's not as though Texas isn't plenty tough on sex offenders already, especially those who commit crimes against children. According to the House Research Organization (p. 3):
Offenders convicted a second time of the two most serious offenses against a child – sexual assault of a child or aggravated sexual assault of a child – automatically receive a life sentence under Penal Code, sec. 12.42(c)(2). Inmates sentenced to life in prison are eligible for parole only after serving 35 years, without consideration of time off for good conduct. Parole can be granted to these offenders only upon approval by at least five of the seven members of the Board of Pardons and Paroles.
Even so, Reps. Riddle and Phillips would get tougher on sex offenders, still, by removing their few remaining options for parole. (That's problematic for at least two reasons: it makes inmates more dangerous while inside prison and massively boosts healthcare costs for elderly prisoners.)

Given documented problems with eyewitness testimony, it would especially concern me to expand the statute of limitations to 20 years after the victim's 18th birthday, as Rep. Riddle proposes. That means cases would be more likely to turn on eyewitness testimony and less likely to involve DNA or other tangible evidence. I just turned 40, and events that occurred when I was ten years old, I assure you, aren't clear enough to me for anyone to rely upon in court beyond a reasonable doubt.

I hear all sorts of ill-informed, do-gooder rhetoric supporting these types of laws, particularly from liberal Dems. On the Burnt Orange Report, Todd Hill, who courageously recounts his own experience with child abuse, improperly draws conclusions from his own experience that just don't hold up to scrutiny. "Trust me," he writes, "a pedophile never stops no matter how old they are." But it's just not true.

The best research on the subject says child molesters are far less likely to recidivate than other types of offenders. This recent study from Washington State (see the chart on p. 12) found that:
Sex offenders who victimize children have the lowest felony recidivism rates as well as the lowest sex (2.3 percent) and violent felony (5.7 percent) recidivism rates.
By contrast, Texas' statewide felony recidivism rate is 28.3%.

So I'm sorry, Todd, I won't "trust" your word over those who have applied social science methodologies to the question. I regret your pain and the trauma you went through, but there is a reason an enlightened society does not allow crime victims to decide sentencing. It's too easy for emotion to trump facts and logic. That's the point I think we've reached in the sex offender debate. It's ridiculous to be "tougher" than we are - we've reached the maximum level of "tuffness" that generates any public safety benefit and now politicians are just grandstanding on the topic, often in ways that make us less safe.

Of the other sex offender bills up Tuesday, all by Democrats, two would implement new residency restrictions on sex offenders and another attempts to keep them out of public parks. (Regular readers know I think such residency restrictions harm public safety more than help it by boosting absconder rates and driving sex offenders underground instead of complying with their supervision because they can't find a place to live.)

The last bill up, by Chairman Peña, would allow anonymity for victims receiving compensation from the state victim compensation fund. I don't know much about how that fund is administered, but I've gotta say I don't like the idea of a state fund doling out compensation to anonymous people, you know what I mean? If the victim went to the authorities with a complaint and the accused person was convicted, their name is already public - certainly the offender, who is the only person a victim might fear, already knows who they are.

So in sum, I don't like any of these bills. None are necessary; all risk potentially greater harm than any likely benefit. But I'm discouraged that I suspect one or more will pass, especially with Democrats like Mr. Hill urging their legislators to "Steal the legislation" in an ill-conceived strategy to out-tough the Republicans.

If Democrats, who control the committee with a 7-2 majority, did want to "steal" this legislation, they should do so by remembering James Waller and making sure that, for the toughest penalties on the books in Texas, safeguards are in place to ensure that no innocent person is ever convicted again. Those reforms might include:
Getting reflexively tuffer without fixing these problems makes little sense to me. If we're going to enact draconian punishments that follow people around for life, we need to do a better job of making sure we're punishing the right people.

Ask Mr. Waller.

BLOGVERSATION: See excellent commentary on the subject from Corrections Sentencing, which calls for differentiating punishments for sex offenders in much the same fashion as suggested by the Texas House Corrections Committee interim report, and another post supporting Jessica's Law from Todd Hill at BoR. Also, meet the Sex Offender Issues blog.

10 comments:

Anonymous said...

Once again, here goes another politician jumping on the bandwagon to better his/her career rather than deal with the issue of sex offenders in a reasonable and educated manner. The first education that would come to mind is the fact that Texas does convict innocent people, as seen in the James Waller case. Thank goodness there were investigators with enough sense to collect DNA or Mr. Waller would still be in prison. This is not the case with all alleged sex offenders.

Prosecutors up for election and judges who fail to properly require a trial where the defendent is able to exercise all his/her rights have clouded the issue of "innocent until proven guilty." Poor lawyering, or no lawyering at all have left many men high and dry, often defending themselves with no evidence other than the words of an alleged victim. It only takes a wife who wants full custody or a scorned girlfriend to put a man in prison for life in the state of Texas.

Now we have some half-cocked politician who wants to begin executing repeat sex offenders. At what point will the insanity among politicians cease?

It would serve the public well to get a full education on the many laws we now have regarding sex offenders and it would do them equally as well to realize they are but one accusation away from spending their days behind bars...perhaps for a lifetime. Instead of falling prey to the media they should cease to be led to slaughter by the mass media.

Surely we can all agree that any crime against children is unacceptable, to say the least; however, we need look at the most noted laws that have passed and ask ourselves why these laws have anything to do with sex offenders. The Adam Walsh law alludes to sex offenders yet there has never been any proof that little Adam was abducted and subsequently murdered by a sex offender. The Amber Hagerman Alert has surely saved other children but the verbage included about sex offenders when talking about this alert makes everyone think little Amber was abducted by a sex offender. My knowledge says they found no sexual assault of Amber Hagerman. We also have the Jacob Wetterling law. This child was abducted at gun point in 1989 and has never been found. How do we know a sex offender abducted him? We don't.

I so not minimize the loss of the three children named but I take serious offense when their abduction is coupled with the word sex offender. We cannot make assumptions like these when it could cost a man his life.

I think the Texas Killing Machine has enough candidates and should not add another category to perpetuate the murder of human life. It is time to stop the insanity of making laws that could cause the execution of an innocent person. Just think...we might have executed James Waller. It should terrify every person in this state.

Jaime Kenedeño said...

Original Article in Interactive Link form at

CCISD: Justice of the Peace Courts' Jurisdiction in Criminal Proceedings "do not include confinement"

Dear State Representative Solomon P Ortiz Jr.,

As South Texas and HD #33 remain in anticipation of your response to the CCISD: email communication regarding Texas Education Code 25.093" specifically and the Texas Education Code 25, another issue has been brought to my attention regarding the JP Courts Jurisdiction in Criminal Proceedings that are punishable by fine only

This is the preface of the JP Court illustrated below in the image entitled Court Structure of Texas according to The Official Website of Texas Courts


Court Structure of Texas

And also according to the The Handbook of Texas Online

Justice of the Peace Courts have jurisdiction over criminal offenses that are
punishable by fine only, and over civil cases in which the amount in
controversy is small (not more than $5,000 in 1995).



CODE OF CRIMINAL PROCEDURE


TITLE 1. CODE OF CRIMINAL PROCEDURE


CHAPTER 1. GENERAL PROVISIONS


Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.


(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.



Please note the limitation operatives under Art. 4.11
JURISDICTION OF JUSTICE (JP) COURTS.

"not consisting of confinement or imprisonment"

and

"do not include confinement"



CODE OF CRIMINAL PROCEDURE


CHAPTER 4. COURTS AND CRIMINAL JURISDICTION



Art. 4.11. [60] [106] [96] JURISDICTION OF JUSTICE
COURTS. (a) Justices of the peace shall have original jurisdiction
in criminal cases:
(1) punishable by fine only or punishable by:
(A) a fine; and
(B) as authorized by statute, a sanction not consisting of
confinement or imprisonment; or
(2) arising under Chapter 106, Alcoholic Beverage Code,
that do not include confinement as an authorized sanction.
(b) The fact that a conviction in a justice court has as a
consequence the imposition of a penalty or sanction by an agency or
entity other than the court, such as a denial, suspension, or
revocation of a privilege, does not affect the original
jurisdiction of the justice court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, eff. Jan. 1, 1966.
Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 4, eff. Sept. 1,
1991; Acts 1995, 74th Leg., ch. 449, Sec. 1, eff. Sept. 1, 1995;
1997, 75th Leg., ch. 533, Sec. 1, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1013, Sec. 38, eff. Sept. 1, 1997.



However, the Justice Courts are punishing by confinement.

The Justice Courts are not appointing Attorneys for indigent defendants involved in adversarial judicial proceedings that are resulting in punishment by confinement.

In Nueces County, the Justice of the Peace Judges are not licensed

attorneys nor is the Justice Court a Court of Record Court.

A Court of Record is defined as:

# A court in which the proceedings are recorded, transcribed, and maintained as permanent records.
brandonlclark.com/glossary.html

# A court whose acts and proceedings are recorded and preserved.
www.courts.mo.gov/osca/index.nsf/0/8b69295b674dde2186256e15004ea27f
# In common law jurisdictions, a court of record is a court that keeps permanent records of its proceedings. Judgments of a trial court of record are normally subject to appellate review. In many jurisdictions, all courts are courts of record. In many jurisdictions, courts that have the power to fine or imprison must be courts of record.
en.wikipedia.org/wiki/Court_of_record


There is no recourse.

There is no accountability.

One other issue is the counting of a certain number of tardies as an absence and the absence is counted towards a truancy absence. There is not a provision for this illegal manipulation so as to prosecute. This prosecution under 25.093 and 25.094 can be easily proven if necessary.

To quote a Nueces County District Judge, "Justice Delayed is Justice Denied" as our HD #33 Representative we ask for emergency intervention and reform of this bad law. This is an appeal to you from South Texas. Do we really need to collect letters and signatures for our South Texas Delegation to take immediate action?

Respectfully,

Anton S Haley

Labels: Bad Law, CCISD, Chuy Hinojosa, Corpus Christi, Solomon P Ortiz Jr, Texas Education, Truancy

Anonymous said...

Much of the tough talk by politicians about sex offenders is nothing but blatant fear-mongering and pandering. They don't tell you that most sex offenses against children are committed by a family member or family friend, not the registered offender down the street. This is about creating the illusion of a problem and then, presto! - the appearance of a solution for which they can then take credit. Even the national child abuse prevention groups don't recommend these residency restrictions, because there is no research showing a link between residence and crimes. And here's an obvious question - if 1,000 feet is the distance a sex offender is supposed to reside from a park, then can we assume that an offender living 1,050 feet away is somehow less dangerous? Seems to me they ought to be focusing their efforts on a method to screen teachers, doctors, fire chiefs, and police officers - all of whom have been charged with sex offenses here in the Houston area in recent weeks.

ZMan! said...

Links:
* http://abcnews.go.com/Video/playerIndex?id=2796316
* http://sexoffenderinfo.pbwiki.com
* http://sexoffenderissues.blogspot.com/

* If the sex offender laws are kept, why discriminate? If sex offenders must suffer for life and be on GPS, so should ANYONE with a criminal record. If this is not done, then it is discrimination. Anyone with a criminal record should be on a registry on the internet for the whole world to see, and be on GPS for life. DUI offenders should not be able to live XX feet from an alcohol store and should have their license revoked. Drug dealers should not be able to live XX feet from anywhere children congregate, so they cannot sell our kids drugs. Murderers should not be able to life XX feet from ANYONE, since they may kill again. DUI offenders kill more people than any other crime (I believe), and I'm sure the entire public would love to know if a murderer, thief, drug dealer, etc lives in their neighborhood. If all this was on the internet for all to see, I'm sure everyone would NOT leave their house at all. These people are everywhere. Why are sex offenders being "scape goated"? EVERYONE WITH A CRIMINAL RECORD SHOULD OBIDE BY THE SAME LAWS SEX OFFENDERS HAVE TO OR IT'S DISCRIMINATION!!

* When will people ever realize no matter how tough on crime, all the zero tolerance, all the registries in the world will not prevent a murderer from murdering, a thief from stealing, a dealer from dealing, a user from using, a rapist from raping....accusations on any sex crime, child abuse, or domestic violence will literally nail your butt to the wall! No DNA has to be present, No violence has to be present..... HEARSAY ALONE IS LITERALLY NAILING THOUSANDS AND THOUSANDS OF PEOPLE TO THE WALL BECAUSE OF THE BIASNESS IN THE LAWS.

* If we must keep the registry for sex offenders only, we need a multi-tier system:

http://sosnet.bravehost.com/solutions.htm#5TierSystem

* Why don't news agencies report when a murderer, gang member, DUI offender, drug dealer/user, etc are out of jail?

* "Buffer Zones" are a false sense of security!

* "Buffer Zones" are banishing people from their town, state, and possibly the country!

* "Buffer Zones" create homelessness, which costs society lost productivity, individual dignity, and creates additional problems for enforcing any accurate registry!

* "Buffer Zones" do nothing, except banish! It could be 50 miles and if someone wanted to re-offend, they'd just get in a car and drive!

* It should be MANDATORY that anyone in prison get therapy, and out of prison, if needed. Therapy does work. If you just lock them up, when they get out, they will be worse off. Therapy teaches people how to not act out and help, regardless of what the general public thinks. Just ask a therpist.

* We need to STOP this hysteria and get sex offenders the help they need.

* You can pass all the laws you want but without therapy and this "mob" mentality will not solve anything!

* I am sick of politicians using children to get their laws passed! Who would want to vote against anything that is "for the children"?

* "Stranger Danger" is a smoke screen & hype! Most child sexual offenses occur by someone the child knows, like a family member or close friend!

* These laws are being passed by politicians using sex offenders as scape goats, for votes!

* Registries do NOT protect anyone or prevent crimes!

* Registries are punishing sex offenders as well as their families and children, and opening them up to vigilantism. DON'T THE FAMILIES AND CHILDREN OF SEX OFFENDERS COUNT? They are suppose to be "for the children", right?

* Registries are NOT being updated in a timely fashion, so the public is getting false information! How is this helping the public or protecting them when they cannot rely on them?

* Registries are putting families and children of sex offenders in a public position to be socially outcast and discriminated against with regard to employment, housing, schooling, etc!

* About 90% of the people on the registry are NOT sexual predators or pedophiles that these laws were for in the first place!

* These laws cost millions, if not billions to enforce, and they cause prison over-population, which is already a problem, especially in California! AND TAX PAYERS PAY FOR ALL THIS!

* GPS does not prevent sexual crimes! Another false sense of security which cost tons of money! Plus they are suppose to pay for this, which will eventually go homeless. MAKE THE TAX PAYERS WHO WANT THESE LAWS TO PAY FOR THEM!

* These laws cause sex offenders to go underground and into hiding, due to the strict nature of the laws! How is this protecting anyone?

* These laws are all abount money for law enforcement and votes for politicians. Prison is a business! Politicians are salaried and want elected/re-elected! Law enforcement get paid for people in jails, prisons or on the registry!

* These laws blatantly disregard the United States constitutional rights of all citizens! (i.e. ex-post facto, due process & others)

* These laws are cruel and unusual punishment! A sex offender cannot go to a fast food restaurant which has a playground! Why? We have just as must of a right as you to get a burger! Plus they cannot go anywhere kids congregate, which is endless (i.e. Amusement parks, Movie theaters, the list is endless)

* Sex offenders can go to church, but must leave immediately afterwards. If a sex offender owns a business and someone decides to put a church or school next door, they have to now sell their business and move. This is not right, move the church or school, the sex offender was there first!

* These laws continue to punish people even after a sentence has been served, and they are trying to get on with their lives! (i.e. ex-post facto)

* These laws are driven by fear-mongering, opportunistic politicians and will do nothing to actually protect children!

* There are over one million women and children whose lives are inter-twined with a sex offender in the United Stated. They should matter too!

* Follow the money trail, these laws are conveyor-belt laws to benefit law enforcement! They get paid for the number of people in jail, prison or on the registry!

* They are currently a one-size-fits all for sex offenders! Not all sex offenders are predators or pedophiles that these laws are suppose to be for anyway!

* They are modern day witch hunts and a scarlett letter!

* If Sex Offenders are re-offending, why does the registries grow each day? Because new people are being added daily for stuff like "public urination", "mooning", "concensual sex", "young children playing 'Doctor'" and various other minor offenses that we need not worry about. We need to worry about predators & pedophiles!

* Now they are trying to make it a law that a sex offender, if they have kids, cannot "take a picture" of anyone under 18. This is totally stupid! Can't even take Christmas pictures, birthday pictures, etc!

* Also, because a sex offender owns a business in town, many people are trying to get the business shut down! The sex offender had the business for awhile. If you don't like it, MOVE!!!!

* The Nazi' did this back when Hitler was in power, with the Jews, Turks, etc.

* The thing about pedophiles not being able to take pictures of kids is stupid. You'd better shred any pictures you have of your kids when they were babies, like diaper changing, baths, etc.

Anonymous said...

Get this - one of the bills pending before the House Criminal Jurisprudence Committee up for a hearing on Tuesday would require an offender to notify the police if he or she enters a park and requires the police to send someone out to monitor that person while in the park. Do these idiots, meaning of course our elected officials, even give a minute's thought to how absurd this stuff is?

Anonymous said...

Sadly, many of these "ideas" come from the constituents the elected official must please in order to be elected....

Anonymous said...

What will the public do when the millions of sex offenders say *ENOUGH!* and start fighting back? Many sex-offenders went to prison and learned to be very violent. What if sex offenders who are trying to get on with their lives are pushed out of their homes, forced out of their jobs, labeled with special license plates, etc., etc. decide to steal a gun or two and just take it out on society? Nitrogen fertilizer, anyone?

Anonymous said...

And they'll go down just like any other nut-job who goes postal on society. The way to fix this hysteria is through the courts. We must all grow some stones and write/call our representatives and voice our anger at their insistence on taking away the rights of our fellow Americans. Once a person has done his time, his dept to society has been paid and these add-on punishments, and they ARE punishments, are unconstitutional ex post facto laws and should all be repealed. But nothing will change if common citizens don't speak up for what's right. God help us if the above poster is serious! Are we so angry at the media portrayal of "child molesters" that we'll happily toss all sex offenders to the wolves in an effort to protect our children from the one who might harm them? When we give government permission to strip common rights from one group of citizens based upon the actions of a few, we give government to strip us of our rights too.

Anonymous said...

More Innocent people are accused of this crime than people know. My boyfriend is currently fighting his case, his daughter has told her grandmother he never hurt her. There is a medical report that says that an allegation came from the maternal grandmother, yet he is on probation after having an attorney that had NEVER tried a case like this and a prosecuter that told him that if he signed he'd get to see his kids again. Now he has a probation officer that uses intimadating tactis on a regualr basis, a therpist that says he's in denial and even though they have given him MTR's and he's had some jail time he still matains his innocence. In the mean time his children are being raised by a man with a record of Meth.. Where is the justice there and now there are many more victims. Instead of making things tougher, why dont we make sure we have the right facts and the right person. I would be willing to bet the number of true sex offenders would drop drasticly.

Anonymous said...

I can say first hand that not everyone is guilty when charged. People are so mad that they are willing to just make stuff up. I am going thru a case right now. I have been jailed, I lost my job, my apartment, my wife and many other things. All because someone said he did this to me. Imagine if you were accused, and all there was is someone said you did something. Thats it, can you imagine if someone to get back at you put there child up to accusing you of something? How would you deal with your life getting taken away by a lie? You are considered guilty until proven innocent. But do you know it doesn't take much and bam! every thinks your a criminal because some lying kid and her mother. Open your eyes people kids lie, mothers lie. If there is no evidence why is it so many men get thrown in jail and convicted. You could be next. Yes you could be next. Then you'll be on the internet, a have people threatening you because of some outrageous lie. Does abuse happen yes, but more often people make SH*t up and you go to jail for nothing. I have counting 3 felonies and a misdemeanor pending for something I never even did. You explain that, Everyone doesn't want your child, most people find child replusive and disgusting, or unappealling. The feminist have high jacked the courts to thinking accused is the same as guilty.