Friday, March 08, 2013

Preview: Full slate of bills at first Senate Criminal Justice hearing next week

The Texas Senate Criminal Justice Committee has finally posted the agenda for its first meeting of the 83rd Legislature. They're getting started late (because most of the committee members have been tied up with the budget) so it's quite a long agenda. Here are a few items that jumped out at me:

Innocence, prosecutor misconduct bills
A couple of good reform bills are on there: SB 344 allowing habeas writs based on false or discredited forensics, which was the subject of an excellent recent story by Maurice Chammah at the Texas Tribune, and SB 825 making grievances related to prosecutorial misconduct public records and extending the statute of limitations for State Bar sanctions when prosecutors hide exculpatory evidence. See the discussion in this Grits post.

Felony for use of unsecured wi-fi?
State Sen. Dan Patrick has a rather odd bill up, SB 249, that on its face appears to potentially criminalize getting onto someone else's unsecured wifi. Currently Section 33.02(b-1) of the Penal Code makes it a state jail felony Class B misdemeanor if, with intent to "defraud or harm another, or alter, damage, or delete property, the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner." (Ed. note: It's a state jail felony if you've been convicted twice before or the network belongs to the government.) To that list, Patrick's bill would also criminalize accessing a system to "obtain a benefit." Since accessing the internet for free is a benefit, and effective consent is defined in the penal code as "consent by a person legally authorized to act for the owner," on its face accessing someone's wi-fi without their express permission would be a crime. Personally, I consider leaving wi-fi unsecured simply common courtesy, though internet service providers would like to restrict it for their own commercial benefit. As far as I'm concerned, criminalizing a neighbor using my wi-fi is akin to criminalizing their reading by my porch light. People can always restrict access if it bothers them. I don't think Sen. Patrick has fully thought through the unintended consequences this legislation. (MORE: From the Dallas Observer's Unfair Park blog.)

Introducing prior bad acts in guilt phase of sex-offender trials
A bill by Sen. Joan Huffman which Grits criticized last session, this time styled SB 12, is back again for a repeat: The bill would upend rules 404 and 405 of the Texas Rules of Evidence in trials of alleged child molesters, allowing evidence of past crimes in lieu of provable facts in the current case. When it came up last session, state Sen. Robert Duncan, a Lubbock Republican, expressed concern that it would allow juries to consider "allegations that have not even been vetted by a grand jury." Sen. Royce West argued strongly on the Senate floor the bill would result in "more wrongful convictions." The philosophy behind this bill was articulated by the Vichy policeman in the movie Casa Blanca: "Round up the usual suspects!" If you were guilty before, obviously you must be guilty this time. The bill analysis says the legislation would "provide prosecutors with a much needed tool" to win cases, but a prosecutor's duty is to seek justice, not convictions. See excellent Houston Chronicle coverage of the version that passed the Senate but died in the House Criminal Jurisprudence Committee in 2011.

Needless expansion of wiretap authority
Another bill by Huffman, SB 188, would expand the array of law enforcement entities authorized to perform wiretaps.This is a solution looking for a problem. Presently local agencies that want to perform wiretaps must have the Department of Public Safety do it, a system which has worked fine for many years. Indeed, local law enforcement agencies rarely use wiretaps, which are mostly performed at the federal level. In 2011, for example, there were just two wiretaps performed on behalf of local Texas agencies - both in Travis County. Given that incredibly low volume there's just no need to delegate additional authority to the locals.

Make counties report case disposition data
Sen. Huffman also has a good bill up, SB 262, which would codify successful incentives informally imposed by the Governor's office to make counties report case disposition data to the state. Lots of problems occur because arrests or indictments may be reported but dispositions, including acquittals, dismissals and reductions of charges frequently fall through the cracks. Under the bill, before counties could receive grant money from the Governor's Criminal Justice Division they'd have to certify with DPS that they'd reported 90% of case dispositions in the previous year. While arguably reporting rates should be even higher, 90% is a far cry from where many counties were at just a short time ago.

Prostitution prevention
Chairman Whitmire has another bill on the agenda, SB 484, which would create mandatory specialty courts related to prostitution prevention and diversion (see the bill text for more details) in counties with more than 200,000 people, but only if they are able to secure state or federal grant funding. They could also charge fees to defendants not to exceed $1,000, but many will be indigent and anyway that's likely not enough by itself to cover the costs. Dallas pioneered this model and by all accounts it has worked extraordinarily well. Counties that refuse to apply for grants for that purpose would lose all their state support for their local probation departments, which is a pretty darn strong incentive. One potential problem: Many of those federal grant funds may dry up if the sequester remains unresolved.

Regulating specialty courts, excluding violent felons
Sen Huffman has a bill, SB 462, which, according to the bill analysis, "consolidates Texas statutes by creating a new Subtitle K within the Government Code where all relevant specialty court provisions can be easily located; improves oversight of specialty court programs by requiring them to register with the criminal justice division of the Office of the Governor and follow programmatic best practices in order to be eligible to receive state and federal grant funds; and changes the composition of the Governor's Specialty Courts Advisory Council to nine members and requires the council to recommend programmatic best practices to the criminal justice division." It would also exclude defendants from participating in specialty courts if they'd been previously convicted of serious, violent (3g) offenses. The number of specialty courts in the state has ballooned but their day to day practices vary from judge to judge, so Grits understands the desire for greater uniformity and oversight. But excluding past 3g offenders may be a mistake. If the new offense was minor enough to otherwise qualify for participation in a specialty court, IMO strong probation closely supervised by a judge is more likely to rehabilitate than a relatively short prison stint.

Providing punishment for 17-year old capital defendants in legal limbo
Yet another bill by Huffman, SB 187, aims to fix the legal limbo that presently exists for 17-year old capital murder defendants, for whom the US Supreme Court has eliminated all legal punishments under Texas law. (See prior Grits coverage.) Seventeen year olds are adults under Texas law but juveniles according to the US Supreme Court, which has eliminated the death penalty and life without parole for juveniles. (States can still offer LWOP sentences, but it cannot be the only alternative.) Huffman's bill would create two sentencing options for 17-year olds, life and life without parole. IMO a regular "life" sentence would be perfectly acceptable for 17-year olds. Paying for a 17 year-old to stay in prison till they're 90, at $18,000+ per year, would cost more than $1.3 million in 2012 dollars. Allowing such youth to become eligible for parole after 30 or 40 years - and of course the parole board can always keep them in longer if their behavior in prison warrants it - makes a lot more sense to me. Another way to go, though with much more sweeping consequences, might be to simply change the state's definition  of a juvenile for criminal justice purposes to comport with interpretations by SCOTUS. Either way, the state has to do something on this issue. Right now there are no legal sentences for 17 year old capital defendants in Texas.

There is a lot more on the agenda so go here to see the full list of bills the Senate Criminal Justice Committee will hear on Tuesday.


Mike Howard said...

Providing LWOP and life with the possibility for parole as the only two sentencing options for juveniles charged with capital murder may still be unconstitutional under Miller v. Alabama. In Miller, SCOTUS held that the trial court had to assess the specific age of the individual, examine the youth's childhood and life experience, weigh the degree of responsibility the youth was capable of exercising, and assess that youth's chances of becoming rehabilitated. Only if the judge concludes that LWOP is a proportional penalty (given all the above factors) can he impose such a sentence.

To me this would suggests an actual punishment range rather than a either/or choice. We'll see. The fight over juvenile sentencing in capital cases is certainly not over.

Anonymous said...

What about that DPS surcharge bill? Man I really need that to go away. It's about to hit me and I've been unemplyed for 18 months now.

Gritsforbreakfast said...

@11:39, The surcharge bill hasn't been posted for a hearing yet. I understand the hospitals are opposing it. Especially if TX isn't going to expand Medicaid, they're afraid they're going to lose their "disproportionate share" indigent care funds and are fearful of the surcharge money going away, even though the state has enough $ in the bank to continue payouts for six years. They want all of it released to them now and for the state to continue collecting it.

Mike, though IANAL, since you are one and you mention it, I read Miller the same way. I'm not sure they get to just offer "regular" life or LWOP without evaluating particularized circumstances. If that's right, this could be another TX law that gets reviewed and maybe overturned by the federal courts.

Mike Howard said...

A Texas law ripe for review? Shocking... On a different note, have they proposed deferred adjudication for DWI again this session?

Anonymous said...

Leaving your wifi unsecured is a really bad idea, Grits. What if your neighbor is using your wifi to download/upload child pornography? It will be YOUR door that gets kicked in, not his.

Gritsforbreakfast said...

I'll risk it, 6:24, so that visitors can easily use it when need be without any hassle. In the situation you describe I would incur no liability.

sunray's wench said...

I still can't get my head round a system that flip-flops between calling 17 year olds children if they are victims but adults if they are purpetrators. It's the mixed message that should be outlawed.

The bill to disclose previous suggestions of wrong-doing at the trial phase is plain and simple wrong.

Are there any useful, helpful or sensible bills?

Anonymous said...

Make counties report case disposition data

Yes, with emphasis on ALL dispostions. Not just cases that went to court, trial and were dismissed but tracking how every arrest was disposed. Don't be suprised to find gross privelage given by prosecutors to white educated wealthy in the form of dismisals, and pre-trial programs.