Friday, September 07, 2012

TPPF: Reclassify nonviolent misdemeanors to save county indigent defense costs

At the Texas Public Policy Foundation, Vikrant Reddy recently published a briefing paper recommending methods of reducing the burden of indigent defense costs for Texas counties, which he correctly noted have been "rising quickly." In 2011, reported Reddy, "Texas courts paid over $198 million (about $165 million was paid by counties, and $33 million was contributed by the state) to serve indigent defendants, a 108 percent increase (in inflation-adjusted terms) over the $95 million spent in 2001."

Most of his suggestions require criminal court judges and county commissioners to change local practices, but he suggested one item that's clearly within the Legislature's purview and which would provide immediate relief to counties groaning under the burden of rising indigent defense costs: Reclassifying more misdemeanors as fine-only offenses. Wrote Reddy:
Reclassification of Offenses
“Reclassification” refers to efforts to categorize some low-lev­el, but jailable, offenses so they are punishable only by a civil or criminal fine, not incarceration. Without the prospect of potential jail time, the right to counsel is not triggered, and a county may focus its indigent defense resources on higher-level offenders.
A Class C misdemeanor is the lowest-level offense in the Tex­as Penal Code; a Class B misdemeanor is the second-lowest. Class C misdemeanors are punishable only by fines, at most of $500. Class B misdemeanors are considered slightly more se­vere. They are punishable, at most, by a fine of $2,000 and up to 180 days in county jail. The inclusion of possible jail time is significant because under Argersinger, it triggers the right to state-appointed counsel.

Class C offenders are not entitled to state-appointed counsel. Class C offenses include gambling, minor in possession of alcohol (MIP), the misuse of laser pointers, criminal mis­chief with less than $50 damage, and theft of less than $50. A Class C offense is an act which the state may consider anti-social and which it may have an interest in restricting, but it is not an activity for which incarceration is thought to be neces­sary. A person can only be incarcerated for a Class C offense if a peace officer decides it is necessary to make an arrest rather than issue a citation (an arrest is only prohibited for speeding and an open container of alcohol) or if the defendant does not appear in court or pay the fine, in which case a warrant is is­sued.

Class B misdemeanors are different. The category includes such crimes as driving while intoxicated, inciting a riot, and making terroristic threats. All of these offenses involve the potential for significant violence and bodily harm, and it is appropriate to punish them with the threat of incarcera­tion. There are other Class B offenses, however, which do not include a dimension of violence. Making silent calls to 911 and the possession of two ounces or less of marijuana are examples. These may be anti-social behaviors which the state has a legitimate role in restricting and sanctioning, but they are not behaviors for which the threat of incarceration, even for a brief period, is necessary.

Even certain Class A misdemeanors (punishable by up to one year in county jail and/or a fine not to exceed $4,000) are non-violent offenses for which jail time may be inappropriate. Vi­olation of any rule of an occupational licensing agency and the promotion of gambling are offenses which might fall into this category.

Also, the offense thresholds for several Class B misdemeanors are often outdated and burden counties with unnecessary in­digent defense costs. An offender who is accused of stealing $60.00 is guilty of a Class B misdemeanor (the crime of theft of $51-$500), and because the offense is punishable with possible incarceration, he is entitled to state-appointed counsel. Had the offender been accused of stealing $50.00, the offense would have been a Class C misdemeanor, and the right to counsel would not have been triggered. Theft of $60.00 may have been reason­ably deemed a jailable offense when the statute was enacted in 1991, but in the intervening years, inflation has grown by nearly 70 percent, and the offense threshold has not been commensu­rately increased.

Obviously, the state must draw a line between what constitutes a Class B misdemeanor and a Class C misdemeanor—and this line will necessarily be somewhat arbitrary. It is impor­tant, however, that the legislature periodically revisits offense thresholds and updates them to keep pace with inflation. In the 82nd Legislature, Rep. Roland Gutierrez proposed H.B. No. 1707, which would have updated the penal code to classify all theft below $100 as a Class C misdemeanor. The bill, had it passed, would have been a good start to easing the consider­able strain on Texas’s overburdened indigent defense system.


Anonymous said...

One can only hope it comes to fruition.

What indigent defense, there is a body there with the offender in court but sometimes difficult to see any signs of life. Basically just paying attorneys to show up in a coat and tie.

Anonymous said...

You are better off indigent. Otherwise you can't get an attorney to to look at your case without payment up front, then he advises you to plead guilty. Reality is most cases are settled within a narrow band of punishment no matter what the defendant does. The only difference is what the defendant pays for a defense that boils down to plead 'em and street 'em.

Prison Doc said...

You go Mr. Reddy--I hope your recommendations fall on fertile ground. This is so badly needed--we can gripe all we want about the Parole Board but where I see the most problem now is with local police and judges who arrest everyone they can, incarcerate as many as possible--flight risk or not--and then haul them to the bar and give them a lengthy sentence.

We need to get the process stopped at the front end, quit over-incarcerating and over-sentencing; otherwise the prison and parole problem won't end.

Anonymous said...

I would add DWI first time, no accident and BAC at or below .10 to that list of class C misdemeanors. Driving buzzed increases risk, but is not necessarily any more dangerous than driving while 75 years old. It is not any more dangerous than a person who runs red lights and risks taking the life of someone every time they do it, including police cars without lights and sirens who routinely do it. We need to be more objective about the real risks and harm to society when setting policy. DWI even at .08 makes someone a criminal even if no one was harmed. Someone in hurry, speeding and running a red problem just a ticket and fine. Someone drives 100 times at a .08 and nothing is likely to happen. Run a hundred red lights...probably gonna hurt someone.Just a little perspective after all the MADD hysteria and tough on crime propaganda.

Anonymous said...

What happens when they dont pay the fine? A capias
pro fine is issued for the arrest of the defendant.....
I wonder what his position is on this?

Gritsforbreakfast said...

8:50, there's no need for VK to take a "position," you answered your own question.

Anonymous said...

Under range of punishment in the TPC, jail time is not mentioned as punishment for Class C offenses, only a fine, whereas class A and B's are punishable by by fine and jail.

Just never have understood how you can jail for class C's when the language is not in the penal code.

One other thing, if you can be jailed now for a class C, why does Arnesberger not apply?

I believe community service is more appropriate for those who do not or cannot pay these fines. Lots of trash to be picked up on county roads and city streets.

And then we have the aspect of jailing people with medical/mental issues over a non paid ticket.