Monday, April 01, 2013

Committee to consider recording interrogations, regulating graffiti, Texas' insane insanity defense and more

Let's point out a few items of interest on the Texas House Criminal Jurisprudence agenda tomorrow.

Record police interrogations
Rep. Terry Canales has a bill on the agenda, HB 1096, which would require police to record custodial interrogations in serious offenses. This is one of a handful of recommendation from the Tim Cole Advisory Panel on Wrongful Convictions that has not yet been implemented. (See this Grits post and the links at the bottom for more background.)

Regulating graff: Two approaches
There are a pair of graffiti-related bills up on Tuesday. One, HB 36 by Menendez, is a straight up enhancement bill as though harsher penalties have ever reduced graffiti in the past. (Naturally, the LBB assumes locking up more people for longer periods will cost no additional tax dollars). The other graffiti bill, HB 3494, is a much more interesting piece of legislation. It would raise the damage thresholds for graffiti punishments and establish a pretrial diversion program requiring community service, restitution, and, with the consent of the property owner, that the defendant clean up the sites they'd despoiled. Menendez's bill amounts to pointless grandstanding that wouldn't affect graffiti levels at all. Moody's bill is on the right track - making both the punishments and penalty categories fit the crime while focusing on restitution and cleanup. But the state should also offer up free spots - say on highway pillars, drainage ditches, concrete berms and the backs of street signs - where graffiti would be allowed. Like other forms of expression, it's appropriate to regulate the time, place and manner but a complete ban is as wrong-headed as it is unenforceable.

Wiping records clean for low-level alcohol and drug offenders
Rep. Alma Allen has proposed HB 1070 which would allow expunction for certain alcohol and drug offenses upon successful completion of probation. I'm for just about anything that facilitates employment upon reentry and provides incentives for good behavior instead of only punishing probationers' missteps.

Reduce penalties for petty drug crimes
Rep. Sylvester Turner has a bill on the dock (HB 2044) which would reduce penalties for less than a gram drug possession from a state jail felony to a Class A misdemeanor, similar to legislation heard last week in this committee by state Rep. Senfronia Thompson (see this discussion). I'm a bit surprised the bill wasn't heard along with Thompson's legislation.

Banning (more) native plants
Rep. Doc Anderson has yet again proposed legislation (HB 124) to ban salvia divinorum, a native Texas plant with moderate psychedelic properties which has emerged as a (mostly unsatisfactory) substitute for more common, illicit substances, but with sickening side effects. Anderson and state Sen. Craig Estes have been trying to pass this same bill since 2007, but with surprisingly little success.

The insanity of Texas insanity defense
Rep. Garnet Coleman will present HB 3765 revisiting the insanity defense in light of difficult and terrible cases like that of Andre Thomas who murdered his family then ripped his own eyes out, eating one of them. If the insanity defense doesn't cover Mr. Thomas' situation then IMO the law is just as deranged as he is. See prior, related Grits coverage. Society has only just begun to think honestly about the implications of major schizophrena and people who hear voices - until now medication or incarceration have been the only two approaches and neither "solution" amounts to much more than a band aid. There are a small minority of dangerous mentally ill people who need to be institutionalized for their own protection and others'. But most people who hear voices will never succumb to such extreme impulses and for those who do there are almost always warning signs. The worst-case scenario arises with people like Thomas who fall through the cracks, never receive meaningful treatment, then are subjected to the harshest possible punishments when tragedy occurs, an outcome that satisfies no justifiable punishment goal save vengeance. (See Brandi Grissom's six-part series at the Texas Tribune on the Andre Thomas case.) Whether or not Coleman's bill provides a meaningful solution, there must be a better way to handle such cases than the way we do things now.

Enhancements here, there and yon
As usual in this committee, the bulk of the rest of the bills involve enhancements, not just for graffiti and salvia but there are also a pair of bills boosting penalties for hit-and-runs, one boosting the charge for assaulting emergency room personnel, another mandating LWOP for repeat sex offenders and restricting their employment (as though that's necessary!), another reducing access to probation for burglary with intent to commit a sex offense and one punishing registered sex offenders for misrepresenting their identity. Honestly, if this committee decided for just a session not to hear any bills creating new crimes or "enhancing" penalties, it would surely reduce their workload by more than half.


Mike Howard said...

What exactly would "appreciate" mean in terms of the insanity defense bill? It's not currently defined in the general definitions section of the Penal Code or in the culpability section. This would create an entirely new mens rea (legal mental state)... Sounds like a bad idea to me.

I'm not sure what practical difference changing "wrong" (how it is in the current insanity section) to "legally or morally wrong" will make. In theory this would allow the defense to achieve a "not guilty by reason of insanity" (NGBRI) verdict easier (by proving that he either didn't appreciate his conduct was legally wrong or didn't appreciate his conduct was morally wrong). I think in practice it wouldn't make an ounce of a difference.

Personally, IMO if you want to amend Texas' insanity defense to make more even and fairly administered, remove the requirement that the court, the prosecutor, and the defense attorney cannot tell the jury what happens if they find someone NGBRI. That's the single worst part of the law on insanity. In practice, jurors can't be told that someone doesn't just get out of jail and walk amongst the law-abiding after a finding of NGBRI. That fear overrides reason and evidence; most jurors simply cannot live with the worry that they might be letting a dangerous and deranged person loose on society. The law reinforces that fear by requiring the parties involved to keep the jurors ignorant of the process, thereby playing to their fears. Hell, crafty prosecutors hint (without saying directly) that a person will walk, underlying that fear even more.

If people knew that defendants found NGBRI would be locked away in a secure mental health facility and would receive treatment until their are deemed by trained professionals to no longer be a threat (if that ever happens), they'd be more likely to listen to an insanity plea and would be more likely to decide such matters with logic rather than fear.

Gritsforbreakfast said...

That's a really good point, Mike, about what the jury is told. That's probably the biggest factor preventing NGBRI from being applied in cases like Thomas'.

Anonymous said...

A lot of people simply don't understand mental illness. A person who is experiencing psychosis (delusions or hallucinations) is functioning in a different reality. Those delusions or hallucinations are as real to them as anything is to your or me. They are incapable of acting or thinking rationally. If you never lived with it up close, its hard to imagine. Try this: Suppose that without your knowledge someone gave you a drug that made you hallucinate. Say that drug made you believe that someone was coming at you with a weapon and was going to kill you. To you, what you are experiencing seems completely real. So, you kill the person in what you believe to be self-defense. What consequences should you face? We need to be focusing on treatment and prevention. We need to develop better methods to deal with mental illness. But, instead we'd rather spend the money on prisons.

Mike Howard said...

Fully agreed 2:39. If a person is not thinking or acting rationally, due to a severe mental disease or defect they truly and honestly believe the killed a person in bona fide self defense, they would be NGBRI. The problem here, however, is getting a jury to follow through with the law in spite of their preconceived fears, biases, and prejudices. If we give them all the facts (by allowing the parties at trial to fully and honestly explain how the system works after an NGBRI verdict) we'd probably get more NGBRI verdicts. That would be the system working much better. Right now the system doesn't trust the jury to have all the facts, which is a travesty, IMHO.

sunray's wench said...

There is only one reason NOT to record interrogations: those doing the interrogation are doing so in a manner that is at best dubious and at worst, illegal.

Michael said...

What many have no clue about is that some individuals will not talk (during an interview or interrogation) w/ LE knowing they are being recorded. It's not that LE doesn't want the interview reordered, they do want to record. Recording is a best practice.

The Feds prefer not to record when local, county, and state prefer to record.

Anonymous said...

First of all , in Texas, the term is NGRI, not NGBRI.

Some states have a statute that allows a Guilty but Insane verdict. This, of course, means that the person was aware of what they were doing at the time. Quite possible, if you actually know people who are certifially "insane".

No matter what the Lege decides, if money is not put toward facilities (jails, state hospitals, MHMR centers) that provide treatment for those who are mentally ill, then people will still slip through the cracks and devastating crimes will still occur.
The State does not need cuts to treatment programs or cuts to the workers (cuts in pay, cuts in healthcare, cuts in retirement) who put their own health and lives in danger to help those with mental illness.

Newspaper headlines cry out when people are murdered, children are injured because of child abuse, and "crazy" people are let loose to wander the streets, however, no one wants to spend "their" tax dollars to make things better.
Private corporations have sprung up, but are they a solution? Look at their inspections records, worse than the State facilities.

Don said...

Anon. 2:00AM is exactly right. Texas is notorious for not funding treatment and prevention programs. The budget writers are proposing adding a few million, moving Texas all the way from 49th to 47th in funds allocated to mental health. Hope they don't break their arms patting themselves on the back.

Mike Howard said...

7:02 - NGBRI stands for not guilty by reason of insanity. That's the term I've heard in court every time I've seen an insanity defense used and the times that I myself have used an insanity defense. That's the term I've seen in court's charges. I totally agree with you that REAL money needs to be committed to mental health treatment. Without increased funding, everything else is just window dressing.

Anonymous said...

I think Mike has a good point about telling teh jury what will happen when a defendant is found NGBRI. It seems odd that we trust them to decide whether a person lives or dies but we can't trust them with that information.

sunray's wench said...

Michael, here in the UK all interviews are recorded and back-seat confessions are not accepted in court without corroboration. However, silence is now not seen as an innocence defence; when IRA members were being tried, guidance to the courts was changed and now if you stay silent it is assumed that you are not innocent (which is not the same as being guilty). So you could use the two remedies together - recording and silence not implying innocence.