Enhancments, drug court funding and probation highlight Senate Criminal Justice agenda

Unnecessary and counterproductive penalty enhancements dominate Tuesday's Texas Senate Criminal Justice Committee hearing, but a good bill on drug courts and one on probation supported by most of the committee could salvage the day's session, for me anyway. Here are Grits' weekly high and lowlights from bills on the agenda.

Free Shaquanda Cotton, Incarcerate a Hundred More
First up on the agenda is Sen. Deuell's SB 109, a timely enhancement given last week's media frenzy surrounding the Shaquanda Cotton case (this has been a hot-button topic as evidenced by the comments, especially, at two prior Grits posts). Deuell's bill would enhance Class A misdemeanor assault charges to a 3rd degree felony when the assault is committed against a school employee.

Cotton's case ably illustrates why this enhancement is a bad idea. For starters, the bill seems unnecessary. The prosecutor in Paris found a way to charge Shaquanda with felony assault (2nd degree, according to press accounts) for pushing a teacher's aide - I don't know the details of her indictment, but Cotton's case is evidence that prosecutors can already indict assaults in schools as felonies if they choose to. That makes the bill unnecessary on its face.

Even more to the point, the state released Ms. Cotton yesterday, and will likely release hundreds more student offenders over the next few months. TYC is overcrowded and understaffed, and youth sent there are increasingly likely to be physically or even sexually abused, while overincarceration makes the working environment for staff unsafe. So why, with all that going on, would Sen. Deuell want to enhance penalties for misdemeanor assaults that will mostly apply to kids in school? If they're convicted, that's just more kids who committed low-level offenses going to TYC where we're already having to let kids out.

Not only can the offense already be charged as a felony, Cotton's case shows that it might actually be an injustice make the offense level so high. SB 109 should be rejected, and the Criminal Justice committee should focus on helping juvenile offenders instead of falling back on grandstanding enhancements.

Estes aims to break up families of drug addicts
Sen. Craig Estes' SB 183 would increase penalties (again - we just did this in 2005) for meth manufacturers who commit their crimes in the presence of children. It creates mandatory minimums of 15 years for said offense at a time when Texas prisons are overcrowded and the Legislature is seeking ways to reduce incarceration for nonviolent offenders.

Meth manufacturing in Texas has declined since the state restricted pseudoephedrine sales - now most meth sold in this state comes up I-35 from so-called "superlabs" in Mexico. But most people who engage in home-made meth making are low-level addicts, not hardened criminals. Drug treatment for meth users is effective where it's been tried, and I don't see how incarcerating parents with no treatment is a better policy than mandating treatment and giving training and services to improve their parenting.

No fiscal note is available yet, but this bill will have a huge cost, and not just for incarcerating the meth addict - imprisoning parents for the long haul means you'll also have to pay for their children who wind up in foster care, and ultimately for some of those kids to be incarcerated, too - kids of incarcerated parents are 6-8 times more likely than their peers to commit future crimes. Given that, and the fact that addicted parents recive no treatment while inside, and this legislation arguably would make the meth problem worse instead of better.

Burglary of a vehicle ... blech, again!
Sen. Whitmire's version of the enhancement for burglary of a vehicle, SB 807, makes its appearance Tuesday. I discussed this bill at length when the House version was up, and refer readers to those comments.

Spend asset forfeiture income on drug courts
Whitmire's SB 1780 is a welcome first step toward an idea I think should be more broadly implemented - it requires 10% of drug asset forfeiture income generated by counties to be used to finance drug courts. This is a two-fer: Drug courts need funding and perverse incentives surrounding asset forfeiture need reform. IMO, the bill could go further on both counts, but it's certainly a good first step.

Under current law, asset forfeiture income may "be used only for the official purposes of the attorney representing the state or for law enforcement purposes." That gives police and DAs and incentive to pursue asset forfeiture cases disproportionately because they're the only type of prosecution that actually generates profit for their offices. In Denton County, income-hungry prosecutors allegedly traded lenient sentences for defendants' agreements not to contest civil asset forfeiture claims.

Current asset forfeiture laws create perverse incentives. First advertised as taking money from kingpins, they are now used even in routine possession cases because law enforcement has come to rely on the income. I've long believed asset forfeiture income should not go to the police or prosecuting agency, but to some neutral budget run by someone else so there's not even a perception of a profit motive. Justice may have become a business for many, but profit should never appear to be its purpose.

Expand probation and treatment for drug offenders
SB 1909's authors and co-authors include most of the Criminal Justice Committee, which one would think bodes well for its passage. It's authored by Ellis, Carona and Deuell, and coauthored by Hinojosa and Whitmire. The bill would require probation for certain low-level 3rd degree felony drug offenders (mostly possession cases involving 1-4 grams) when the judge finds the defendant is not a public danger. That makes it essentially similar to what HB 2668 by Allen did for state jail felony possession offenders in 2003 - sending small-time possesion cases to probation and treatment on the front end.

I'll be interested to see the fiscal note for this bill because I suspect it should save the state a significant amount. In conjunction with Whitmire and Madden's probation-strengthening measures in other legislation, this bill makes a lot of sense, preserving incarceration for more dangerous folks and giving addicts a second chance to turn their lives around.