Monday: Subcommittee on Criminal Procedure
Skewing jury pools
HB 1577 by Laubenberg, up Monday, to my mind is a terrible bill which states that a juror cannot be removed for cause for reason of their stated unwillingness to agree to probation as a punishment when the law allows it. That's a rotten idea. In death penalty cases, jurors are routinely disqualified because they don't think they can support the full range of punishments on the high end. If that's acceptable, then jurors who say they couldn't administer the LOW end of punishments should be similarly disqualified for the same reason - they cannot promise to consider the full range of penalties available under the law. What's good for the goose is good for the gander. UPDATE: Jamie Spencer has more.
In HB 2674 by Alonzo, hearsay evidence would be restricted at bail hearings. That's a good bill. If such evidence is too shaky to convict, it's also too shaky to justify denying bail.
HB 2675, also by Alonzo, requires judges to hold pretrial hearings on the request of the prosecution or defense at least 30 days before trial, restricting judges' discretion to decline the request. That bill is particularly helpful to ensure defendants' potential innocence claims aren't ignored. It would ensure that all defense claims raised at least received a hearing, reducing the chance that appellate courts later would later overturn cases because a judge improperly refused to grant one.
Tuesday: Regular committee hearing
Admission of unproven conduct in sex offense cases
HB 1264 by Peña continues this committee's draconian approach to sex offenses. This legislation would authorize admission into evidence of extraneous offenses and unproven charges in certain sex offense cases. If approved, the bill would allow admission into court of any evidence that might shed light on a defendant's "character," instead of whether they committed any specific offense. With respect to the chairman, that's an utterly rotten idea - truly it would be a travesty of justice if this bill became law. Basically HB 1264 would allow prosecutors to convict someone of simply being a bad person instead of the specific crime with which they're accused. I often label legislation I don't like "bad bills" on Grits, but this legislation is beyond bad - I personally find it outright offensive.
Don't disempower judges
HB 2719 by Vaught is another bad bill that disempowers judges disallowing them from ordering community supervision in cases of injury to a child. That's a foolish idea. These cases are often complex, emotional affairs where child witnesses are reluctant to testify and family members' conflicted loyalties and interests. Judges aren't granting community supervision in the most egregious cases, but leaving them the discretion to make judgment calls about punishment serves the interests of justice, where this bill's rigid sentencing harms those interests, not to mention worsens prison overcrowding.
Closing search warrant affidavits about PR, not justice
HB 1011 by Riddle is another bad bill, a companion to SB 244 by Williams in the Senate. I discussed the bill in more depth when it was up in the Senate, and encourage interested readers to see that analysis for more background. As previously reported, the bill makes "search warrant affidavits closed records by request of the prosecutor, in this case for up to 90 days. IMO, this authority would be used more often as a PR maneuver to protect law enforcement's ass than it will to protect investigations - to put off inquiries by the media and public when something goes wrong, at least until the heat dies down." There are a tremendous variety of unintended consequences to closing these records, but the most foolish aspect is this: The person whose home is searched can see the affidavit immediately - it's only the press and the public who would be forbidden from knowing the details. The crooks targeted for searches would still have that information immediately. So the bill wouldn't protect sources from criminals, just reduce public accountability for the rest of us, with literally zero public safety benefit.
Give notice for extraneous, prejudicial testimony
HB 1773 by Escobar is a good bill that requires notice if prosecutors intend to bring evidence of prior bad acts at trial, including details about the specifics being alleged. This bill doesn't necessarily contradict HB 1264 by Peña (above), but it certainly mitigates in the opposite direction. Given my druthers, I'd like to see HB 1773 approved, and HB 1264 perfunctorily deposited in the dustbin of history. With so many wrongful convictions having recently surfaced, IMO we need more safeguards against prejudicial "evidence" being admitted in court that doesn't relate to the charged crime. Escobar's bill gives defendants an opportunity to respond to such prosecutorial tactics instead of having them sprung on the defense at trial.
Pierson pursues knee-jerk, unconstitutional add-on penalties for sex offenders
HB 3009 by Pierson is an ill-considered bill that tacks on electronic monitoring penalties to sex offenders who are "off paper" or who have completed all legal requirements under the law, requiring additional monitoring for three years after their original sentence is complete. Though IANAL, I seriously doubt this legislation is constitutional - the Lege can't just enact add-on penalties in addition to a sentence given a defendant under laws in effect at the time. I've been quite disappointed with Rep. Paula Pierson's punitive penchant for draconian, symbolic measures - particularly her grandstanding on "tuff" but poorly thought-through enhancement bills like this one. Pierson appears to know very little about criminal justice, and so far has focused on fearmongering proposals with no evidence-based support for their effectiveness. Those types of politicized bills IMO are a serious disservice to her constituents. UPDATE: A reader forwards me this letter he sent to Chairman Peña and the Criminal Jurisprudence Committee adumbrating in greater detail why this bill is a bad idea.
No need to de-regulate wiretapping
In the 'if it ain't broke, don't fix it' department, Rep. Riddle's HB 357 would de-regulate wiretapping in Texas, allowing local law enforcement agencies to operate their own "pen registers" and other wiretapping equipment. Right now all wiretapping in the state runs through the Department of Public Safety, ensuring uniform standards and application of wiretapping regulations that simply could not be enforced if every local agency was doing it. I've never heard of any circumstance where DPS' involvement in wiretapping cases caused any problems - this bill is a solution looking for a problem. And since there really isn't one, I hope the committee rejects it out of hand. This legislation could lead to a slew of unintended consequences and outright scandals down the line that the current regulatory setup is designed to avoid. It would be foolish and irresponsible to endure those risks when there's no evidence of problems with the current system.
Pretrial mediation - here's a legislator using his noggin
HB 2437 by Escobar is a very interesting bill that could have a significant impact on reducing jail overcrowding and misdemeanor court caseloads. The bill would create pretrial victim-offender mediation programs in counties over 100,000 for misdemeanors and state jail felonies. Offenders who successfully participated in mediation with victims could avoid a conviction with an apology and victim compensation (or community service if compensation isn't applicable). If mediation is unsuccessful or if a defendant fails to fulfill terms set by the mediator, they would still be prosecuted. I'd be curious as to the opinions of any defense attorneys regarding this legislation - it looks like a good idea to me, but the devil is in the details, particularly in the funding mechanisms, and I could be missing something. Even so, I'm happy Escobar proposed the bill, and it looks to me like a great first step toward the type of alternative, "restorative justice" approaches advocated, e.g., by the Texas Public Policy Foundation.
Enough with the fees already
Another ill-conceived bill by Rep. Pierson up Tuesday, HB 3010, would assess a new fee on defendants who are assigned community service by the courts as a condition of probation. Again, Ms. Pierson appears to have little understanding of the big picture issues surrounding her various proposals. Past Legislatures have larded so many fees on defendants that they already contribute signficantly to probationers being revoked for so-called "technical violations." While the House Corrections and Senate Criminal Justice Committees are struggling with substantial reforms to reduce prison overcrowding and technical revocations, this committee continues to churn out new penalty enhancements and proposes new fees that worsen the problem.
Ain't That Tuff Enough? Irresponsible Enhancements Keep Coming
If the Texas Legislature passes NO new criminal penalty increases ("enhancements") this session, our state's prison population is projected to outstrip current capacity by 17,000 beds in just five years. For every new penalty enhancement passed, that problem only becomes worse. As the House committee whose jurisdiction includes the penal code, Criminal Jurisprudence is the main gatekeeper on new enhancements. But so far this session, the gatekeeper has been asleep at the switch, approving numerous new penalty increases with no regard, or even for the most part discussion, of what impact it would have on prison overcrowding. (To her credit, Rep. Terri Hodge has been the only consistent voice on that committee raising such concerns - she's certainly not getting much help opposing enhancements from her fellow Dallas Democrats, to their discredit.)
Tuesday's regular committee agenda contains several additional enhancements, then on Wednesday an entire subcommittee agenda is devoted to criminal penalty increases. Bottom line, these penalty enhancements represent grossly irresponsible fiscal policy and, more often than not, a polticization of justice rather than improving public safety. All should be shelved until Texas' prison capacity crisis has been solved. Just to quickly run through the enhancements on Tuesday's regular agenda (I'll deal with the ones in the subcommittee if and when they're voted out):
- HB 1586 by Flores creates a new offense of shining an intense light at an aircraft. Naturally, all types of interference with aircraft is already a crime, which makes this legislation a) symbolic and b) meaningless, but c) a potential pile-on penalty to allow prosecutors to rack up multiple charges for the same, already illegal offense - that enhances their position in plea bargaining purposes, but it doesn't make an already illegal act any more illegal.
- HB 1767 by Peña enhances felony prison sentences for stealing wire from transportation signs, signals and devices. Again, this is already illegal, and there's no justification for the notion that stealing wire is more reprehensible than other types of theft. As usual, the Legislative Budget Board says this bill will have zero fiscal impact, but that's absurd. This bill enhances misdemeanor conduct from a misdemeanor to a third degree felony (2-10 years). By definition every person convicted under the law would incur increased incarceration costs for the state at a time when Texas prisons are already overflowing.
- HB 2950 by Mallory Caraway enhances penalties for crimes commited that include driving a vehicle through a wall, window, garage door, etc. This makes little sense - driving your car through someone's wall as part of a crime, naturally, is already its own criminal act. There's zero reason to consider busting through a plate glass door with a car is any worse than doing it with a sledgehammer. So why enhance the penalty? This bill should have gone to the enhancement subcommittee - it's a silly piece of flotsam that doesn't really merit the full committee's attention.
Anyway, those are this week's high and lowlights at the Texas House Criminal Jurisprudence Committee. As always, to learn more about the bills go to the capitol website, which is an amazing resource for tracking Texas legislation.