Thursday, February 15, 2007

Sex Offender Tuesday in House Criminal Jurisprudence

It looks like Tuesday is sex offender day in the Texas House Criminal Jurisprudence Committee. See their agenda here. What a heavy topic for their first day of real committee work!

When I see all these git-tuff proposals targeting child molesters and sex offenders, I can't help but think of James Waller, who was the 12th recent person exonerated in Dallas County by DNA evidence. Waller was convicted in 1982 of the rape of a child, and he was lucky there happened to be DNA evidence available to disprove his conviction 24 years later. Many such cases are made solely through eyewitness identifications, as in Waller's case, which are notoriously inaccurate.

Given Waller's case, as Texas prepares to make sentences for child molesters more "tough," I wonder why isn't more attention being paid to making sure the right person is being punished?

Sometimes it seems like public safety really isn't the goal. I mean, it's not as though Texas isn't plenty tough on sex offenders already, especially those who commit crimes against children. According to the House Research Organization (p. 3):
Offenders convicted a second time of the two most serious offenses against a child – sexual assault of a child or aggravated sexual assault of a child – automatically receive a life sentence under Penal Code, sec. 12.42(c)(2). Inmates sentenced to life in prison are eligible for parole only after serving 35 years, without consideration of time off for good conduct. Parole can be granted to these offenders only upon approval by at least five of the seven members of the Board of Pardons and Paroles.
Even so, Reps. Riddle and Phillips would get tougher on sex offenders, still, by removing their few remaining options for parole. (That's problematic for at least two reasons: it makes inmates more dangerous while inside prison and massively boosts healthcare costs for elderly prisoners.)

Given documented problems with eyewitness testimony, it would especially concern me to expand the statute of limitations to 20 years after the victim's 18th birthday, as Rep. Riddle proposes. That means cases would be more likely to turn on eyewitness testimony and less likely to involve DNA or other tangible evidence. I just turned 40, and events that occurred when I was ten years old, I assure you, aren't clear enough to me for anyone to rely upon in court beyond a reasonable doubt.

I hear all sorts of ill-informed, do-gooder rhetoric supporting these types of laws, particularly from liberal Dems. On the Burnt Orange Report, Todd Hill, who courageously recounts his own experience with child abuse, improperly draws conclusions from his own experience that just don't hold up to scrutiny. "Trust me," he writes, "a pedophile never stops no matter how old they are." But it's just not true.

The best research on the subject says child molesters are far less likely to recidivate than other types of offenders. This recent study from Washington State (see the chart on p. 12) found that:
Sex offenders who victimize children have the lowest felony recidivism rates as well as the lowest sex (2.3 percent) and violent felony (5.7 percent) recidivism rates.
By contrast, Texas' statewide felony recidivism rate is 28.3%.

So I'm sorry, Todd, I won't "trust" your word over those who have applied social science methodologies to the question. I regret your pain and the trauma you went through, but there is a reason an enlightened society does not allow crime victims to decide sentencing. It's too easy for emotion to trump facts and logic. That's the point I think we've reached in the sex offender debate. It's ridiculous to be "tougher" than we are - we've reached the maximum level of "tuffness" that generates any public safety benefit and now politicians are just grandstanding on the topic, often in ways that make us less safe.

Of the other sex offender bills up Tuesday, all by Democrats, two would implement new residency restrictions on sex offenders and another attempts to keep them out of public parks. (Regular readers know I think such residency restrictions harm public safety more than help it by boosting absconder rates and driving sex offenders underground instead of complying with their supervision because they can't find a place to live.)

The last bill up, by Chairman Peña, would allow anonymity for victims receiving compensation from the state victim compensation fund. I don't know much about how that fund is administered, but I've gotta say I don't like the idea of a state fund doling out compensation to anonymous people, you know what I mean? If the victim went to the authorities with a complaint and the accused person was convicted, their name is already public - certainly the offender, who is the only person a victim might fear, already knows who they are.

So in sum, I don't like any of these bills. None are necessary; all risk potentially greater harm than any likely benefit. But I'm discouraged that I suspect one or more will pass, especially with Democrats like Mr. Hill urging their legislators to "Steal the legislation" in an ill-conceived strategy to out-tough the Republicans.

If Democrats, who control the committee with a 7-2 majority, did want to "steal" this legislation, they should do so by remembering James Waller and making sure that, for the toughest penalties on the books in Texas, safeguards are in place to ensure that no innocent person is ever convicted again. Those reforms might include:
Getting reflexively tuffer without fixing these problems makes little sense to me. If we're going to enact draconian punishments that follow people around for life, we need to do a better job of making sure we're punishing the right people.

Ask Mr. Waller.

BLOGVERSATION: See excellent commentary on the subject from Corrections Sentencing, which calls for differentiating punishments for sex offenders in much the same fashion as suggested by the Texas House Corrections Committee interim report, and another post supporting Jessica's Law from Todd Hill at BoR. Also, meet the Sex Offender Issues blog.


Anonymous said...

Once again, here goes another politician jumping on the bandwagon to better his/her career rather than deal with the issue of sex offenders in a reasonable and educated manner. The first education that would come to mind is the fact that Texas does convict innocent people, as seen in the James Waller case. Thank goodness there were investigators with enough sense to collect DNA or Mr. Waller would still be in prison. This is not the case with all alleged sex offenders.

Prosecutors up for election and judges who fail to properly require a trial where the defendent is able to exercise all his/her rights have clouded the issue of "innocent until proven guilty." Poor lawyering, or no lawyering at all have left many men high and dry, often defending themselves with no evidence other than the words of an alleged victim. It only takes a wife who wants full custody or a scorned girlfriend to put a man in prison for life in the state of Texas.

Now we have some half-cocked politician who wants to begin executing repeat sex offenders. At what point will the insanity among politicians cease?

It would serve the public well to get a full education on the many laws we now have regarding sex offenders and it would do them equally as well to realize they are but one accusation away from spending their days behind bars...perhaps for a lifetime. Instead of falling prey to the media they should cease to be led to slaughter by the mass media.

Surely we can all agree that any crime against children is unacceptable, to say the least; however, we need look at the most noted laws that have passed and ask ourselves why these laws have anything to do with sex offenders. The Adam Walsh law alludes to sex offenders yet there has never been any proof that little Adam was abducted and subsequently murdered by a sex offender. The Amber Hagerman Alert has surely saved other children but the verbage included about sex offenders when talking about this alert makes everyone think little Amber was abducted by a sex offender. My knowledge says they found no sexual assault of Amber Hagerman. We also have the Jacob Wetterling law. This child was abducted at gun point in 1989 and has never been found. How do we know a sex offender abducted him? We don't.

I so not minimize the loss of the three children named but I take serious offense when their abduction is coupled with the word sex offender. We cannot make assumptions like these when it could cost a man his life.

I think the Texas Killing Machine has enough candidates and should not add another category to perpetuate the murder of human life. It is time to stop the insanity of making laws that could cause the execution of an innocent person. Just think...we might have executed James Waller. It should terrify every person in this state.

Jaime Kenedeño said...

Original Article in Interactive Link form at

CCISD: Justice of the Peace Courts' Jurisdiction in Criminal Proceedings "do not include confinement"

Dear State Representative Solomon P Ortiz Jr.,

As South Texas and HD #33 remain in anticipation of your response to the CCISD: email communication regarding Texas Education Code 25.093" specifically and the Texas Education Code 25, another issue has been brought to my attention regarding the JP Courts Jurisdiction in Criminal Proceedings that are punishable by fine only

This is the preface of the JP Court illustrated below in the image entitled Court Structure of Texas according to The Official Website of Texas Courts

Court Structure of Texas

And also according to the The Handbook of Texas Online

Justice of the Peace Courts have jurisdiction over criminal offenses that are
punishable by fine only, and over civil cases in which the amount in
controversy is small (not more than $5,000 in 1995).





(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.

Please note the limitation operatives under Art. 4.11

"not consisting of confinement or imprisonment"


"do not include confinement"



Art. 4.11. [60] [106] [96] JURISDICTION OF JUSTICE
COURTS. (a) Justices of the peace shall have original jurisdiction
in criminal cases:
(1) punishable by fine only or punishable by:
(A) a fine; and
(B) as authorized by statute, a sanction not consisting of
confinement or imprisonment; or
(2) arising under Chapter 106, Alcoholic Beverage Code,
that do not include confinement as an authorized sanction.
(b) The fact that a conviction in a justice court has as a
consequence the imposition of a penalty or sanction by an agency or
entity other than the court, such as a denial, suspension, or
revocation of a privilege, does not affect the original
jurisdiction of the justice court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, eff. Jan. 1, 1966.
Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 4, eff. Sept. 1,
1991; Acts 1995, 74th Leg., ch. 449, Sec. 1, eff. Sept. 1, 1995;
1997, 75th Leg., ch. 533, Sec. 1, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1013, Sec. 38, eff. Sept. 1, 1997.

However, the Justice Courts are punishing by confinement.

The Justice Courts are not appointing Attorneys for indigent defendants involved in adversarial judicial proceedings that are resulting in punishment by confinement.

In Nueces County, the Justice of the Peace Judges are not licensed

attorneys nor is the Justice Court a Court of Record Court.

A Court of Record is defined as:

# A court in which the proceedings are recorded, transcribed, and maintained as permanent records.

# A court whose acts and proceedings are recorded and preserved.
# In common law jurisdictions, a court of record is a court that keeps permanent records of its proceedings. Judgments of a trial court of record are normally subject to appellate review. In many jurisdictions, all courts are courts of record. In many jurisdictions, courts that have the power to fine or imprison must be courts of record.

There is no recourse.

There is no accountability.

One other issue is the counting of a certain number of tardies as an absence and the absence is counted towards a truancy absence. There is not a provision for this illegal manipulation so as to prosecute. This prosecution under 25.093 and 25.094 can be easily proven if necessary.

To quote a Nueces County District Judge, "Justice Delayed is Justice Denied" as our HD #33 Representative we ask for emergency intervention and reform of this bad law. This is an appeal to you from South Texas. Do we really need to collect letters and signatures for our South Texas Delegation to take immediate action?


Anton S Haley

Labels: Bad Law, CCISD, Chuy Hinojosa, Corpus Christi, Solomon P Ortiz Jr, Texas Education, Truancy

Anonymous said...

Much of the tough talk by politicians about sex offenders is nothing but blatant fear-mongering and pandering. They don't tell you that most sex offenses against children are committed by a family member or family friend, not the registered offender down the street. This is about creating the illusion of a problem and then, presto! - the appearance of a solution for which they can then take credit. Even the national child abuse prevention groups don't recommend these residency restrictions, because there is no research showing a link between residence and crimes. And here's an obvious question - if 1,000 feet is the distance a sex offender is supposed to reside from a park, then can we assume that an offender living 1,050 feet away is somehow less dangerous? Seems to me they ought to be focusing their efforts on a method to screen teachers, doctors, fire chiefs, and police officers - all of whom have been charged with sex offenses here in the Houston area in recent weeks.

Anonymous said...

Get this - one of the bills pending before the House Criminal Jurisprudence Committee up for a hearing on Tuesday would require an offender to notify the police if he or she enters a park and requires the police to send someone out to monitor that person while in the park. Do these idiots, meaning of course our elected officials, even give a minute's thought to how absurd this stuff is?

Anonymous said...

Sadly, many of these "ideas" come from the constituents the elected official must please in order to be elected....

Anonymous said...

What will the public do when the millions of sex offenders say *ENOUGH!* and start fighting back? Many sex-offenders went to prison and learned to be very violent. What if sex offenders who are trying to get on with their lives are pushed out of their homes, forced out of their jobs, labeled with special license plates, etc., etc. decide to steal a gun or two and just take it out on society? Nitrogen fertilizer, anyone?

Anonymous said...

And they'll go down just like any other nut-job who goes postal on society. The way to fix this hysteria is through the courts. We must all grow some stones and write/call our representatives and voice our anger at their insistence on taking away the rights of our fellow Americans. Once a person has done his time, his dept to society has been paid and these add-on punishments, and they ARE punishments, are unconstitutional ex post facto laws and should all be repealed. But nothing will change if common citizens don't speak up for what's right. God help us if the above poster is serious! Are we so angry at the media portrayal of "child molesters" that we'll happily toss all sex offenders to the wolves in an effort to protect our children from the one who might harm them? When we give government permission to strip common rights from one group of citizens based upon the actions of a few, we give government to strip us of our rights too.

Anonymous said...

More Innocent people are accused of this crime than people know. My boyfriend is currently fighting his case, his daughter has told her grandmother he never hurt her. There is a medical report that says that an allegation came from the maternal grandmother, yet he is on probation after having an attorney that had NEVER tried a case like this and a prosecuter that told him that if he signed he'd get to see his kids again. Now he has a probation officer that uses intimadating tactis on a regualr basis, a therpist that says he's in denial and even though they have given him MTR's and he's had some jail time he still matains his innocence. In the mean time his children are being raised by a man with a record of Meth.. Where is the justice there and now there are many more victims. Instead of making things tougher, why dont we make sure we have the right facts and the right person. I would be willing to bet the number of true sex offenders would drop drasticly.

Anonymous said...

I can say first hand that not everyone is guilty when charged. People are so mad that they are willing to just make stuff up. I am going thru a case right now. I have been jailed, I lost my job, my apartment, my wife and many other things. All because someone said he did this to me. Imagine if you were accused, and all there was is someone said you did something. Thats it, can you imagine if someone to get back at you put there child up to accusing you of something? How would you deal with your life getting taken away by a lie? You are considered guilty until proven innocent. But do you know it doesn't take much and bam! every thinks your a criminal because some lying kid and her mother. Open your eyes people kids lie, mothers lie. If there is no evidence why is it so many men get thrown in jail and convicted. You could be next. Yes you could be next. Then you'll be on the internet, a have people threatening you because of some outrageous lie. Does abuse happen yes, but more often people make SH*t up and you go to jail for nothing. I have counting 3 felonies and a misdemeanor pending for something I never even did. You explain that, Everyone doesn't want your child, most people find child replusive and disgusting, or unappealling. The feminist have high jacked the courts to thinking accused is the same as guilty.