Saturday, April 18, 2009

Bills boosting penalties make statements rather than solve problems

More new, increased criminal penalties are coming down the pike this session, it appears, likely adding to the 2,324 separate felonies Texas already has on the books.

Sen. Jackson's latest oyster enhancement passed out of committee. Trey Martinez-Fischer (and many others) want to boost penalties for owners of dogs who attack children. Meanwhile, Mike Ward reports that computer hacking into government systems may become a felony, even if no data is taken, if a bill by Sen. Kel Seliger that just passed the Senate becomes law.

Dave Montgomery at the Fort Worth Star Telegram has a story about a bill to make theft of livestock a third degree felony no matter how small the animal's value; it passed the Senate on a 29-2 vote. The bill will be another good test case to measure whether increasing criminal penalties deters crime, as evidenced by this exchange on the Senate floor:

Sen. Carlos Uresti, D-San Antonio, questioned whether making a third-degree felony was too much.

“Up to 10 years in prison for one cow?” he asked.

“This will deter rustling,” Seliger said.

The Senate agreed, voting 29-2 for final passage of the measure.

Whether rustling is deterred will be a measurable outcome, so if that turns out not to be the case, I hope Sen. Seliger will step forward a couple of sessions down the line to roll that penalty back. The described boost in the volume of rustling (a trebling in one year, supposedly, to 970 cases of cattle theft) could easily be attributable to the existence of just one or two active theft rings. This is another instance where more vigorous enforcement of laws currently on the books would have more impact that making the laws tuffer.

Indeed, frequently the assumed "deterrence" hoped for by backers of higher penalties simply doesn't pan out in the real world. E.g., last session the Lege boosted penalties for theft of any amount of scrap metal to a felony, only to see the offense rate skyrocket after the new laws were enacted because of rising copper and metal prices. The predictable legislative response: Expand the list of items that trigger an automatic felony charge.

In reality, the penalty class assigned to scrap metal theft didn't have much to do at all with the frequency of the violation, and I'll bet the same is true of cattle rustling.

The House is only now beginning its biennial penalty-hike spree in earnest. On Monday's House calendar, for example, HB 671 by Darby would boost penalties for theft by one category (or "enhance" it, to use the Orwellian capitol euphemism) if the victim is a nonprofit organization. Would this have prevented Bernie Madoff, et. al., from defrauding foundations or other nonprofits? It seems doubtful - this bill is designed to make a statement, not solve a problem.

Another bill on Monday's House calendar, HB 1813 by Vo, would boost penalties for forensic technicians for tampering with government records, based largely on one recent case with no real precedent or reason to believe the problem is widespread. I'm glad if legislators want to address crime lab flaws, but there are a lot more pressing concerns than this.

And that's just a taste of the dozens of bills increasng criminal penalties still moving through various committees in both chambers. I've not been tracking so-called "enhancement" bills this session as closely as in the past, but in almost every instance there are other ways to pursue the same policy goals by using the laws currently on the books, as well as approaches that don't involve the justice system.


Don said...

The enhancements as "deterrents" assume that criminals perform a statistical analysis before they commit a crime, weighing the chances of getting caught,the probability of getting a minimum sentence, moderate sentence, maximum sentence, factoring in the penalty range and the probable benefit to themselves. They are nothing but political "tuff on crime" enhancements. That's all.

Anonymous said...

The greater the penalty, the more inmates in the system. The more inmates in the system, the more we need prison beds. The more prison beds we need, the more we pay private prison contractors. The more we pay private prison contractors, the more campaign contributions go to legislators. A vicious, simple, and enduring cycle. We can do better!


JTP said...

While deterance may be a factor in this type of legislation, I would suspect that in most cases, legislators don't really have any ideas about how to effectively curtail a particular crime, so probably out of frustration, they do the same thing that they always do, and hike the penalties, with the same predictable results of failure. I tend toward a modified restorative justice concept for certain crimes. Develop ways of better policing and prevention up front. Once a violator is caught and convicted, don't just lock them up and throw away the key with a hefty prison term. Instead, for first time offenders, give them shock probation, coupled with lots of community publicity that includes their picture in the paper, mandatory public speaking to community groups about what they did. That would also provide the best type of free public education by "teachers" with "real world" experiences. Maybe even have their probation officer or a police officer standing next to them when they speak! Require them to work for their victim's compensation as part of their sentence. About one year of this type penalty would deter most of their propensity to commit future property crimes, or other crimes involving a financial loss, exclusive of Burglary of a Habitation. Reserve the more serious sentences for repeat offenders and for individuals committing crimes against persons.

Anonymous said...

I am all for making statements. Yes, I do agree that criminals many times do not consider the consequences and therefore these enhancements may not deter crime, but who cares? If you do not want to do 10 years for stealing a cow, don't steal the cow. If you are going to choose a life of crime, maybe you need to do your research on the possible consequences....

123txpublicdefender123 said...

Anon 12:07, that is completely illogical. So, the criminal is not deterred by enhanced penalties because they don't really even know they exist, and so the answer is to just punish them, so they will in the future do their research so they will be deterred? Seriously?

The goal of legislation relating to crimes and their various penalties shouldn't be to motivate criminals to better research which crimes are worth committing. The issue should be whether it is an efficient use of taxpayer resources to lock someone up for a particular length of time for a given crime. What is the cost to society and what is the benefit?

I still remember when they made repeat prostitution a felony. Talk about moronic! The repeat prostitution clients I worked with had all been assaulted and/or raped by "clients" at one time or another. Many had stories of thinking they were going to be killed. They all knew that the next client they got into a car with could be a serial killer. None of that deterred them from giving a bj for $10, but somehow, the legislature thought that making it a felony would deter them? Yeah, right.

Anonymous said...

My research comment was sarcasm. I don't believe criminals research laws to know what possible consequences lie ahead. I realize incarceration comes at a price tag, but maybe thats just a cost the government must pay. You liberals have no alternative to the crime problem. Probation is a waste of time for many offenders! In fact,I believe probation causes crime. Probation is so pathetic, it doesn't deter crime. In many cases, a probationer maintains contact by phone or even by mail. How is this justice? When the consequences of crime becomes nothing more than an inconvience for the offender, crime will go up.

Anonymous said...

So, anon 2:44, how's the current system workin' for ya?

Anonymous said...

current system? what do you mean?

Gritsforbreakfast said...

2:44/12:07, your comments are misguided on an astonishing number of different levels. Several reactions:

1) If you want to "make a statement," rent a billboard or buy a TV ad. That's not the purpose of criminal law and it's not a function it fulfills very well. Nobody reads criminal laws but lawyers and it's futile to pass them merely for education purposes.

2) If high incarceration costs are just "a cost the government must pay," I assume you also publicly support raising your own taxes to cover the expense? If not, isn't that a tad hypocritical?

3) Your comments about probation causing crime actually contradict real world outcomes, where recidivism from prison is relatively high but those who successfully complete probation tend to commit fewer crimes. While there are some offenders who need to be locked up to protect others, for many probation is actually more of a punishment because living straight in the outside world is more difficult that becoming institutionalized in prison where they give you three hots and a cot. In fact, many offenders choose incarceration over probation because the latter is more difficult to complete.

4) There are three times as many people on probation as in prison, so the idea that they should all be incarcerated is impractical and silly from a purely pragmatic perspective. The tax hikes required to pay for it would be politically untenable.

While I can tell they're well meaning, IMO your comments here are pretty off base. There are more things under heaven and earth than are dreamt of in your philosophy, Horatio.

sunray's wench said...

Sooooo... what are the statistics to show that increased penalties do not deter particluar crimes? I know we can all pull anecdotal evidence out of our hats, but that's not going to convince people like anon@2.44 or any of the Legislators. Is anyone going to actually track the numbers of cow rustlers who are convicted post-the hike to a 10 year sentence? If it can be proved next session (or probably in 4 years time) that the numbers of convictions have actually risen, is there a chance of getting it recinded?

Surely there has to be some backward motion to this process as well?

Gritsforbreakfast said...

Sunray, criminal penalty hikes tend to be a "one-way ratchet," to use a term coined by an academic a few years back. They typically only go up.

There are plenty of examples where particular crimes didn't go down b/c penalties increased; you just have to look at crime rates for the offenses before and after penalties go up. (There are other variables to muddy the waters, but that's the only methodology available.) Indeed, there's an argument to be made that some "enhancements" actually promote the behavior they're trying to reduce.

I could easily replicate the scrap metal example for many different offenses. E.g., we have the harshest sentences in the country for murder- more frequent use of the death penalty, long prison terms for other murderers, etc. - but among the highest murder rates.

What you find, over time, is that crime rates tend to rise and fall independently of punishments - in other words, after a point, there are diminishing "deterrence" returns for additional penalty hikes. And we've long passed that threshold for most offenses on the books.

Anonymous said...

Charles Kiker here:

I guess stealing a one day old sick baby calf would also qualify for the enhanced penalty.

The sad fact is that legislators do not act any more rationally than the cattle thief. Somebody steals my cow. I am mad and call my legislator. My legislator does not want me to be mad, at least not at him. (Actually Warren Chisum does not give a rip if I'm mad at him, but he wouldn't want livestock owners to be.) So the legislator "makes a statement" by introducing a bill to enhance the penalty for stealing a cow. The rancher's happy. The legislator is happy. The cattle thief doesn't even know that the penalty has been enhanced, so he'll still steal another cow if he gets the opportunity.

When cattle prices went sky high, more cattle were stolen. When scrap metal prices went sky high, more scrap metal was stolen. Now that metal prices have tanked, I would wager that scrap metal theft has gone down, (because of the enhanced penalties of course.)

I hope some legislators take a good hard fiscal look at penalty enhancements, and ask how we are going to pay for housing the criminals. I guess we could put a 90% tax on the sale of stolen goods, and then declare failing to pay the tax a first degree felony.

sunray's wench said...

Grits ~ once again, if I can see it, and you can see it, why can't the legislators?

Charles ~ isnt the sale of stolen goods also illegal?

Gritsforbreakfast said...

"I can see it ... why can't the legislators?"

Because it's politically expedient to do what they're doing. Solving a problem can be difficult. "Sending a message" about it through penalty hikes is easy and if the problem doesn't get solved, they can blame police or the courts for not enforcing their new, tuff-as-nails laws.

A penalty enhancement is almost always a cop out, an implicit admission by the bill author that their lack of imagination or political will prevents them from doing anything that might actually help their constituents' problems. But it lets them tell they public they "did something" on the topic, and at election time that's all that matters.

Finally, re: Charles' suggestion for taxing stolen goods, believe it or not Texas already taxes illegal drugs (supposedly), or in reality they created a phony, BS "tax" so they could charge people with tax evasion in addition to other offenses. You'd be surprised the creative ways legislators find to write legislation that has no real-world effect in the slightest on the problems they're demagoguing about. Or maybe you wouldn't, since our criminal laws are so chock full of examples.

Anonymous said...

Unfortunately, much of our general population looks to our laws and harsh penalties as means of preventing every bad thing from happening.

I recently blogged with a local group who were all in favor of a permanent revocation of the license of a driver who had run a stop sign and caused a minor accident with a bus. The line of thinking was that anyone who could not see a bus had no business ever driving a car again.

Accidents have existed since the very beginning of time and now we look to harsher penalties to solve even this irritating phenomenon?

And we will never be able to stop every crime and aberration, especially since we live in a democracy. Some level of crime is just part of the price we all pay for livin' free.

sunray's wench said...

@anon 9.36 ~ and of course not having a valid licence never stopped a lot of people from driving anyway

Anonymous said...

Yes, Sunray, and unintended consequences abound.

Men fight for freedom, then they begin to accumulate laws to take it away from themselves. ~Author Unknown

Informed Citizen said...

What the PUBLIC overlooks is the WRONG being perpetrated in the name of "public safty".
Those licensed to operate our government - Executive, Legislative, and Judicial - are the ones that are causing the most harmful "accidents". They do far more property damage, and destroy more lives, than all the automobles on the planet.
When government on our land was first established the provision of the supreme Law of the Land that says they shall be BOUND by that law required more than simply an Oath of Honor they could dishonor. It required "proof of financial responsibility or liability insurance" before one could perform ANY function wherein they jointly or severally operating the BEAST known as government. This helped keep the Beast functioning as our servant rather than as our master.
Today all who live on the public dole have been granted a TITLE OF NOBILITY. For them the Law that governs the Title applied to their position of employment is merely a suggestion. Their paycheck from the public treasury we fund has become a ROYALTY payment. We are simply their subjects. We the People are now slaves to the regime.
Of course, accepting this TRUTH is very uncomfortable. So most prefer to live in a state of denial whenever the TRUTH invades their comfort zone.
As a result of the foregoing the percentage of the public directly enslaved with imprisonment, semi-imprisonment known as probation or parole, will continue to grow. The assessements imposed on the less directly enslaved by employment in the public sector of our economy will continue to increase with taxes and fines to fund the BEASTLY MACHINE and provide Royalty Payments to the servants of the machine - those referred to as public servants who serve only their own petty selves while pretending or deluding their selves into believing they are serving the people of their State, their Nation, their Country.
Please send comments to

Anonymous said...

Hell fire, Grits. Many of us high plains folks think Seliger is soft on crime. Instead of ten years for russlin', we wanted the death penalty (other than Rev. Kiker, a noted lefty, soft-on-crime peacenik).


Informed Citizen said...

If you understood Texas and American Law you would know that the death penalty applies only to Foreigners and Traitors.
The only citizens that can commit treason are those who are PUBLIC citizen. That is; employed in positions of public trust as a public servant.
The Death Penalty is applicable to the public servants, elected or appointed (includes those hired) who rustle your cattle. They do so every day. They are doing so now through the enhancements that will impose additional taxes upon your cattle. ----
The objective is to keep more of them employed at YOUR expense. It has NOTHING to do with crime or greater deterent against crime. That's just a SPIN used to fool the fools.

Gary McClendon said...

I am starting to believe that we need to find someway to have offenders do something that will benefit the victims of their crime. It is apparent that restituion is seldom paid. Maybe if you steal a cow, you should get a ten-day sentence of reparing fence line for the owner. Maybe doing the work while wearing a homemade jersy cow suit would help get the point across.

WC said...

Vote these dummies out of office is the only solution.

Gritsforbreakfast said...

Gary, you're not alone in thinking that high penalties don't benefit victims. I first heard that line of argumentation among the restorative justice set.

Informed, first, clearly the death penalty is applied more broadly in Texas than you claim. Also, Plato was a) probably accurate in his assessment of Panhandle political sensibilities, and b) poking good natured fun at me and Rev. Kiker. No need to go off on him.

Anonymous said...

Term limits would take care of many of these problems. Like DC, Texas elected officials do not have life time jobs as a House or Senate member. The elected people who have the jobs of making laws need to have term limits; maybe this would eliminate the problems of re-election "look at what I did last term", and stop some of the foolishness ongoing in our Legislature. To have passed only one bill in the House, is utterly embarrassing! The 81st Session ends next month, what have they been doing?

Watch the hearings and notice the empty chairs, or listen to the roll calls and you will be shocked!! Where are are Representatives and Senators during Hearings? Not in the hearings, that is for sure!! I want to see the voting records for each and everyone of them, that should be a law, but no one will write that law, that would do away with some of the glory of those who do nothing but paint a rosy picture of themselves to get re-elected.

Anonymous said...

Charles Kiker again:

Scott, I thought I was being facetious about taxing the sale of stolen goods, then whomping them when they can't pay the tax, but evidently some brighter than I legislators had already thought of it non-facetiously.

With harder times, theft will be on the rise, regardless of penalty enhancements or the lack thereof.

Informed Citizen said...

Restorative Justice was NEVER abolished. It still exists. The only differences between a Civil Actiion and a Criminal Action is:
(1) WHO pays the plaintiff is and who is paying for the plaintiff's attorney. In crim case the plaintiff is the Government (NOT the "victim").
(1) What is "due" from the wrongdoing if found in the wrong. In crim case what is due at conclusion of the process is a penal sanction. In civil case what is due is "restorative justice".
there is NOTHING keeping the complainant or victim of a crime from filing a civil action against the person who violated a law providing for criminal sanctions. In fact - they only have to prove guilt by a preponderance of the evidence, rather than beyond a reasonable doubt. But they should NOT ask the public to pay for the prosecution. At the time of our founding we did not have legions of attorneys employed at public expense as prosecutors. Most crime victims hired an attorney to prosecute their complaint and sought, in the same action, both civil and criminal remedy and redress.
Restorative Justice is still very much in practice elsehwere in the world. It was termed BLOOD MONEY and done away with here, and in many other nations. Blood Money paid to the victim, or the victims family in the case of a murder, will enable the wrongdoer to avoid penal sanctions or enable them to have the penal sanction reduced.
Here, on our land, restorative justice / blood money was considered a deprivation of equal protection of the law. The rich could perpetrate crimes and buy their way out of the deterent.

sunray's wench said...

Informed Citizen said:
"there is NOTHING keeping the complainant or victim of a crime from filing a civil action against the person who violated a law providing for criminal sanctions. In fact - they only have to prove guilt by a preponderance of the evidence, rather than beyond a reasonable doubt. But they should NOT ask the public to pay for the prosecution."

So a person has nothing stopping them except the ability to pay for such action.

BTW the Death Penalty is usually imposed when there is a murder in conjunction with another crime. It very rarely has anything to do with plotting to overthrow the current government or killing a monarch.

Anonymous said...

Thanks Plato. I'd rather be called a peacenik than a warmonger. And, as a peace lover, I refrain from name-calling on this blog. Except for my own name. I'm not ashamed to give it.

Rev. Kiker

Anonymous said...

I agree with the term limit comment. The original ideal of political work was that one came fro the fields to do it, then returned to the fields after a short amount of time. I don;t think the founding fathers had this as their ultimate objective for representative government. The long term employment of politicians is insane, almost as insane as giving a MILLIONAIRE a retirement package.

Informed Citizen said...

SUNRAY - YES, a person who believes they have been the victim of a crime can choose CIVIL action. Regardless of whether or not the STATE chooses to represent THE STATE in a criminal action.
ABILITY TO PAY - Originally usage fees for access to Court applied ONLY to professionals. The PUBLIC and the CITIZEN as the OWNER of the Court should not have to pay to access the Court. That said - they can file in pauperis or have a Professional Counselor pay. A contingency fee arrangement.
DEATH PENALTY imposed on Private Citizens has been illegal since July 4, 1776. But, as with slavery, the government continues to violate the Law of the Land and will do so as long as the Citizens tolerate crimes committed in the name of THE STATE.
In our Land, treason is NOT about "overthrowing the government". Treason is about overthrowing THE CONSTITUTION, and with it the ability of the Citizens for SELF-GOVERNMENT, our ability to CONTROL our own creation, our servant.
See my blog - the Lay of the Law - There is the Law, and then there is what happens in the PRACTICE of law. Often the OPPOSITE of the Law and it's original intent.

sunray's wench said...

Informed Citizen ~ all I can say is, I have to assume that you have never had the misfortune of being allocated a public defender because of your inability/refusal to pay for legal representation.

Things are not like they were in the 1700s anymore, going backwards isnt an option here, fixing things from the inside is a much better bet.