Texas Legislature Does "Enhancements"

The Texas Legislature loves to increase criminal penalties. The capitol euphemism for penalty increases is "enhancements," as in, "I'm going to enhance the penalty for meth production."

Every time they do that, it causes some future Legislature down the the line to increase spending to pay for incarcerating more people.

Yesterday Grits argued that "now this politically expedient, completely bipartisan hobby is running up against budget reality, and finally it appears the relevant committees in both chambers, at least, understand they can't keep doing that." Nearly as soon as I'd posted it, though, I realized that wasn't the whole story. Certainly the Senate Criminal Justice Committee (or at least its current membership, which includes Senate Finance Chair Steve Ogden) now understands the situation, and largely the relevant House committees do too, in my judgment. Between them, maybe they can slow down the train.

That doesn't mean at all, though, that the rest of the Texas Legislature has abandoned penalty enhancements. It's a biennial pastime too deeply engrained to be stopped by a couple of smart committee chairs. So far I've found 16 enhancement bills already filed, and I've not looked comprehensively at all the bills. By bill filing deadline in March we'll see several hundred. It's a bipartisan list, and includes folks with whom I agree on many other things:

In the House, enhancements have been filed by Representatives Corte, Callegari, Eissler, Todd Smith, Branch, Berman, Farrar, Truitt, and in the Senate by Senators Estes and Van de Putte.

Some of these bills will clearly be expensive for the state, especially those that increase a misdemeanor to a felony. County governments pay for misdemeanor incarceration costs, but state government must finance incarceration for felony prison terms.

That's what makes it so frustrating that bills like Rep. Frank Corte's HB 13, which would make a second offense for selling alcohol to a minor a felony, don't get any cost figures attached to them. Democrat Jessica Farrar filed something similar on a different topic, HB 144, turning the second offense of burglarizing a vehicle into a felony. Historically, the Legislative Budget Board (LBB) has not attached a "fiscal note" to these types of bills, which means that, for budgeting purposes, it doesn't cost anything.

Other bills lengthen incarceration periods, like Rep. Leo Berman's HB 163 (he's from my hometown of Tyler), which increases charges for forgery, credit or debit card abuse and certain types of identity theft from state jail felonies to 3rd degree felonies on the second conviction, allowing sentences up to ten years. SB 109, by Craig Estes, would enhance penalties for home meth cooks to a mandatory minimum 15 years if a child is on the premises, ignoring who will take care of the child once the parent is incarcerated!

Even Leticia Van de Putte, one of my favorite Democrats in the Senate, filed SB 112 dramatically enhancing penalties for meth to the point where a small-time dealer could receive a life sentence on the first offense, and a first-time meth possession case involving less than a gram would become a third degree felony, allowing incarceration for 2-10 years instead of 9 months in a drug treatment program! How much more do you think that would cost?

LBB says it doesn't have the numbers to calculate how many people receive second convictions on second offenses, etc., or even how many people are busted for meth, so they can't make an estimate. I've seen the data they have to work with, and it's shameful but true that nobody knows how many offenses of crime X are committed in the state. The data just isn't kept in a useful or retrievable way. As a result, though, Texas' prison budget is dying a death from a thousand cuts -- over the 1990s, it grew faster than any other portion of the state budget, including health care, mostly because of increasing penalties and declining parole rates.

I still don't think the criminal-justice related committees in the Texas Legislature will pass many enhancements this session. It makes no sense from the perspective of the public policy dilemmas facing them, although inevitably the day will come when a committee chair decides to trade this or that enhancement slipping through for something else they want. The biggest concern, though, will likely be members tacking penalty increases onto unrelated bills in other committees, or attaching amendments to legislation, especially on the House floor.

Hopefully budget pressures can cause what moral and ethical arguments have so far failed to achieve -- a re-evaluation of Texas' draconian criminal justice policies.