Saturday, May 07, 2011

Symbolic Justice: LWOP for serial rapists creates more problems than it solves

One the the biggest differences between California's hyper-expensive prison healthcare system and Texas' relatively well-functioning one is the widespread use of life sentences and life without parole in the Golden State compared to Texas, which has driven up health costs for older inmates with long sentences, including end of life care. About 6% of Texas inmates are lifers, compared to 20% in California. Older prisoners are boosting Texas' healthcare costs as well (it's not like Texas Board of Pardons and Paroles is particularly generous toward this category of inmates), but California's overuse of life sentences has swelled the ranks of their prison geriatric wards.

Life sentences in Texas usually mean 30-40 years minimum, but until recently almost all "lifers" in Texas were eventually eligible for parole. Then in 2005, death-penalty abolitionists cut what IMO was a terrible deal with prosecutors to eliminate the possibility of parole in capital cases, creating Texas' first "Life Without Parole" (LWOP)  sentence. At the time, Shannon Edmonds at the prosecutors association predicted the sentence would become a camel's nose under the tent, with the list of qualifying crimes inevitably expanding over time just like with capital murder. And he was right; it almost immediately did. The next LWOP sentence was for "continuous sexual abuse of a child," and now we have House Bill 3 by Rep. Senfronia Thompson creating an LWOP sentence for sexual assault on the second offense. Rep. Thompson is a powerful, influential legislator with lots of seniority; there's a risk this legislation will make it fashionable to propose LWOP enhancements for all sorts of stuff if it goes through.

As it does with virtually every criminal penalty enhancement, no matter how big or small, the Legislative Budget Board says there will be "no significant fiscal implication" for the state from the legislation, which is nonsensical from a long-term perspective (though it's true enough for purposes of biennial budgeting). Paying for prisoners' health care in those final years of life through General Revenue funds basically assumes costs that, if they could be paroled after 30-40 years, would be assumed by the feds through the Medicare program. There are individual inmates with million-dollar healthcare bills at TDCJ near the end of life, so it doesn't take many of those to cause that line item to grow.

And for what? As is so often the case with criminal penalty enhancements, this proposal is a placeholder for actual solutions - a symbolic statement, not a serious plan to reduce sexual assaults. For evidence, one need only look to the Criminal Justice Policy Impact Statement, where we learn that a shockingly low number of people are successfully prosecuted each year for first or second degree felony sexual assault - just 105 in FY 2010, fifty of them for aggravated sexual assault (for which the estimated average sentence length is 22 years). I would not have guessed it was so few. In 2009, by contrast, according to DPS' annual "Crime in Texas" report (pdf), there were 8,286 rapes reported statewide. Given so few successful felony prosecutions for sexual assault, punishing the handful of rapists convicted more harshly wouldn't do nearly as much to reduce rape as focusing more investigative resources on front-end investigations, e.g., by testing the thousands or rape kits backlogged in crime labs around the state.

HB 3 is a political feel-good bill that causes more problems than it solves, pushing Texas sentencing further down the slippery slope toward California-dom that began with LWOP for capital murder in 2005. HB 3 passed the Texas House 144-0 based on its symbolic merits - who wants to vote against harsh punishments for serial rapists? (And who cares if our grandkids are stuck with their end-of-life health costs? Let them solve the tough problems while we put them off.) But if the goal is to actually reduce the number of sexual assaults, the focus should be on solving more crimes, starting with processing those outstanding rape-kit backlogs. In a time of scarce resources, that tactic would get a lot more crime-fighting bang for the buck compared to keeping a few extra old men in TDCJ long after they pose a risk.


Anonymous said...

HB 3 sounds straight-up stupid. Let's see how quick this bankrupts Texas. What's the saying I heard? Oh yeah, "As California goes, so goes the country." These get tuff rednecks show they don't give a whiz bang about taxpayer's money.

Anonymous said...

I'm not sure I'd call Senfronia Thompson a "get tuff redneck," but hey, maybe she'd be flattered! LMAO!

Anonymous said...

Maybe the people have decided it's worth paying for. I don't mind my tax dollars to keep that scum segregated for the rest of their lives. Why shouldn't a second time rapist get life.

Gritsforbreakfast said...

6:35, you're right, Senfronia Thompson is no redneck or a conservative, she's one of the more liberal members at the Lege. The "tuff on crime" stuff isn't liberal or conservative issue, it's a bipartisan, Big Government consensus. In fact, in practice Democrats carry more criminal penalty enhancements than Republicans, fwiw.

8:40 asks, "Why shouldn't a second time rapist get life"?

According to the argument in this post, because the marginal extra money spent on incarceration would get more crime-reduction bang for the buck by spending to increase clearance rates, e.g., by testing the thousands of untested rape kits around the state. Failing to do that means more rapists go free, and there's not enough money in the budget to do everything.

If only 105 rapists out of 8,000+ get felony convictions, public safety benefits more from catching and punishing more people than punishing the few prosecuted ever more harshly.

Finally, it's not true that "people have decided it's worth paying for" because the LBB fiscal notes means the Lege never pays for enhancements in the budget. They just pass laws and jack up the budgets later because they "have to." It's not a pay as you go deal and costs are not a factor in legislative debates over criminal penalties because of the LBB.

sunray's wench said...

If this is coupled with the other Bill that wants to allow alegations of sexual assault to be treated as convictions when it comes to sentencing, then there will be a lot more than 105 people affected.

For goverment bodies, LWOP is actually the easy way out. It is their way of saying they don't know how to deal with the situation, don't want to deal with it, and are happy to brush it under the carpet or hide it in a warehouse. While the BPP exists in its current state, Texans have very little to fear about any rapist (or many other criminals) getting out of prison on parole.

Anonymous said...

Maybe the LBB should be reviewed to determine if they are actually doing their job?
All changes carry a certain amount of cost and they never seem to factor any cost to any bill/law. If they can't see these laws do cost the state money in the long run, then what is their purpose?

Brian McGiverin said...

This was a good article, though I admit was was pretty distracted by the opening line about "Texas' relatively well-functioning" prison health care system.

Anonymous said...

Talk about an uphill battle. Defending serial rapists will not be popular anyway one tries to spin it. I've read where these guys have raped when they were in their 70's. I've never disagreed with you about anything, but this time I do.

Anonymous said...

Am I wrong in my recollection that some of the exonerees were falsely accused and incarcerated for rape?

Gritsforbreakfast said...

Brian, the reference is relative to California. When you just scratch the surface of how messed up they are, you almost start to admire our folks, which to be certain is still damning with faint praise.

11:46, I never set out to be popular on this blog, or I'd take up different subject matter. According to German philosopher Arthur Schopenhauer, "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." On this issue society is somewhere, perhaps, between the first and second stages.

1:44, fwiw, almost all of the DNA exonerees were convicted of rape, in part because the only ones where they could get them out were where there was biological evidence (usually rape kits) and they kept the evidence.

Anonymous said...

The tuff on crime crowd has their view of serial rapists, but our view is correct. Our view is the self-evident truth. Time is on our side.

ckikerintulia said...

I like the LWOP as a penalty option for juries in capital murder cases. For serial rapists how about L as an option without the WOP. It doesn't close the door absolutely.

BTW, I find releasing prisoners who are ill just to save TDCJ money very cynical. Somebody will have to pay, most likely another governmental entity. FWIW

Gritsforbreakfast said...

Charles, life with possibility of parole is already an option on all first degree felony sentences, and of course the parole board is not letting those folks out with any frequency. That's the main reason I say it's not needed. They're already punished plenty and eliminating parole just ensures the prison system pays their end of life health costs.

4:55, time is in fact not on our side, and you don't have to wait: just look at California's prison health care costs to see what filling your prisons with lifers gets you.

You watch: The Lege will pass the enhancement but leave the rape kits untested. Catching more rapists is a low priority for the tuff on crime crowd (certainly if your views are any indication), as long as they can demagogue about how harshly they punish the handful who are caught.

A Texas PO said...

I agree that the state needs to get off its laurels and test those DNA kits ASAP. In a year when the budget is a screaming, stomping, rampaging elephant in the room, one would think that the folks in Austin would be looking at ways to reduce cost long-term, especially those who plan on making the Lege a career. I'm not so hot on the idea of taking away LWOP for serial rapists or those who molest children over several years, but I understand the argument here. Obviously getting a rapist off the street will reduce the numbers of victims, but then what do we do with them? I am a strong proponent of treatment versus incarceration and it still baffles me that, with all the studies and data out there proving these things save money, the Lege and public officials always go the more expensive route.

Anonymous said...

I'm no expert but it seems it is common practice in many state corrections systems and even county jails to throw the terminally ill, end of lifers out because of the enourmous costs. But there are uninteded consequences to that as well.

I know of a guy who had been on the lam for a years' long crime spree. He contracted HIV and Hepatitus C from his drug usage and became so sick he figured it was better to turn himself in. The state didn't want to pay and niether did a few other juridictions that had pending felony charges on him, so all was dismissed.

Well that was before the new drugs came out and since then he's gotten alot healthier because the state Medicaid program and some private foundations are footing the bills. He's not pulling anymore holdups as far as I know, but he's certainly capable of it.

Also, shifting healthcare costs to the feds via Medicare is not a certainty given something will have to be done about our deficit spending, and that entitlement is going to be where it all starts.

Unless the prison system runs a program to get the end of lifers enrolled in some kind of healthcare program it's likely they will just commit new crimes to get put back inside. After being incarcerated for 40 years the sick and institutionalized will barely be able cope with public transportation, much less the insane bureaucracy of Medicare.

Anonymous said...

My concern on this article is with the stats dealing with convictions of rapists. In the County that I work in, many of Sexual Assault cases result in deferred adjudication probations. Obviously, those don't count towards convictions, but the cases are disposed of none the less. Some of those probations ultimately end up being adjudicated and sentenced to prison for violations. However, I doubt that the stats listed were considering probation adjudications that resulted in prison sentences. Just something to think about. Not all numbers are black and white. There may be more people going to prison for Sexual Assault than the numbers reveal.

Anonymous said...

Anon 11:20 can you clarify this?

"Obviously, those don't count towards convictions, but the cases are disposed of none the less."

Is this solely regarding legality on the front side? Currently and sex offense in the state with deferred adjudication is considered a felony. DPS records it as a felony, and even after the presiding judge releases the case after successful completion and dismisses all but the arrest, the 'conviction' stays on the DPS database. Currently I am 5 years out of a DA successfully for a sex crime, yet in the state of Texas I am listed and considered convicted. No revocations, no further charges.