Thursday, March 15, 2007

Big Sentencing Day in House Criminal Jurisprudence Tuesday, Part One

There are several excellent bills on the agenda for the House Criminal Jurisprudence Committee on Tuesday, and I wanted to run through some of the highlights. Indeed, there are so many to talk about, though, I think I'll do it in two parts.

Morsels for the sentencing palate
First up on the agenda is an enhancement bill from Calendars Chair Beverly Woolley upping the penalty for cruelty to animals to a state jail felony on the third offense (I wonder if someone will quote Ghandi?).

Though to my taste that's starting on a sour note, animal lover though I am, things improve quickly when the committee will hear what I'm pretty sure is a modest but good bill (perhaps Jamie Spencer or PovertyLawyer1 can correct me if I'm misreading it) by Rep. Burt Solomons that sets notification rules for no-shows on Class C misdemeanor traffic tickets. Huh ... I had no idea Solomons cared about such things.

The Purpose of Sentencing
Anyway, after that come several good bills that collectively make this the most promising Criminal Jurisprudence Committee agenda so far this session:

The real fun starts with Rep. Sylvester Turner's HB 1075 which would create a new section of the Code of Criminal Jurisprudence on the "Purpose of Sentencing." I think that's great - right now it too often seems like the "purpose" is to maximize the judge and prosecutor's chances for re-election. Here's the key language in the bill:
(a) The purpose of a sentence is to:

(1) provide punishment that is likely to reduce the chance that the defendant will recidivate;
(2) rehabilitate the defendant, while recognizing that different rehabilitation strategies are appropriate for different defendants; and
(3) impose penalties on the defendant that are proportionate to the seriousness of the offense for which the defendant is sentenced.

(b) A sentence should be appropriate for the offense committed and the defendant being sentenced.
That's not only an excellent statement of the goals of criminal sentencing, it also makes for a nice intro into some of the other critical bills coming up that follow it. It will be instructive to hear testimony on this item - what is the purpose of sentencing? Vengeance, for example, isn't on the list, but a lot of people think that's the main purpose for punishment.

Tell me what you think: What's the purpose of criminal sentencing? Besides the philosophical question posed by the bill, I'm also curious as to what some of you legal eagles out there think this legislation would mean for defendants in practice?

More goodies from the Speaker Pro Temp
The next bill up, HB 1476, empowers judges and juries to ignore "enhancements," or pile-on penalties, as our friend 800 Lbs Gorilla calls them, "on a unanimous determination by the jury or a written determination by the judge that the enhanced punishment would result in disproportionate or unfair punishment." That leaves enhanced penalties available when they're necessary to fulfill the purposes of sentencing (see HB 1075), but gives judges and juries options to impose lesser sentences when appropriate.

Another good bill from the Speaker Pro Temp, HB 337, would require a judge to find that technical probation violations are "wilful and intentional" in order to revoke or lengthen community supervision as punishment, and requires that punishments be proportional to the violation committed. If someone can't keep up with their fees because they have no money, for example, it's not "wilful and intentional" that they didn't pay up. This is a small but significant bill that would help folks on the margins who want to meet their supervision obligations but for whatever reason, through no fault of their own, cannot.

Reducing Low-level Drug Penalties: A Real Legislative Solution for Prison and Jail Overcrowding
Next up on the docket are two bills I would expect to draw a lot of interest: HB 759 and HB 758 by Dutton, which would reduce penalties for low-level drug posession for powder and marijuana, respectively. No other two piece of legislation filed this session would do as much to reduce the overcrowding problems faced at every level of government statewide.

It speaks well of the Chair that Rep. Peña gave them a hearing. If his committee is going to continue to pass penalty enhancements, at some point they're going to have to make room for those offenders, and these bills are the best methods proposed in 2007.

While Rep. Harold Dutton has proposed them as separate bills, really these two pieces of legislation should be seen as a package. While HB 758 could stand alone, by itself HB 759 would cause serious logistical problems for counties. Taken together, though, they amount to an excellent, well-thought out alternative to current drug sentencing practices in Texas.

Let's start with HB 759 - while some think of reducing drug sentences as a liberal suggestion, actually the conservative Texas Public Policy Foundation has been the most prominent recent proponent of the idea, along with Judge Michael McSpadden, a lock-em-up Republican district judge from Houston.

There is no fiscal note posted for the bill yet, but it would save Texas a lot of money. In 2003 then Chairman Ray Allen, a Grand Prairie Republican, proposed the same idea in HB 2668 (the bill was later amended to grant probation instead of incarceration on the first offense, but to keep the state jail felony). According to the fiscal note for the filed version, which included the same penalty reduction as HB 759, the state would save a quarter billion (with a "B") dollars in the first five years, and $72 million per year thereafter. It would achieve this by shifting those prisoners to the county level where they would serve shorter sentences or be placed on community supervision.

But as regular Grits readers know, county jails are basically full right now. That's why HB 759 doesn't work unless they also pass HB 758, or else some other bill that relieves local jail overcrowding. According to LBB's old fiscal note, in 2002 9,130 people entered Texas prison for state jail felony drug offenses, with 22% of them having additional felony charges that would justify state incarceration. That means 78% of them, or roughly 7,122 new people, would be affected by this change and would be incarcerated or supervised by the county.

HB 758 would resolve that problem and then some by clearing low-level pot offenders from the county jail - issuing people caught with less than an ounce of marijuna Class C misdemeanor tickets instead arresting them for a Class B misdemeanor. The difference: With a B misdemeanor officers usually arrest, so they must take time to haul them to jail. If they're indigent the county must pay for their lawyer, and the system wastes time housing somebody who nobody really thinks a serious threat. In 2002, more than 50,000 such offenders were arrested and taken to local jails. Honestly, doesn't law enforcement have bigger fish to fry?

Changing the penalty for possessing less than an ounce of pot to a C misdemeanor would let officers spend more time on the street while jailers would have fewer petty offenders to deal with, preserving jail space for more serious violators. Plus it would GENERATE fine revenue instead of costing taxpayers for incarceration and lawyer fees every time someone is arrested. In Columbia, MO when the same change was made, police actually enforced majijuana prohibitions MORE often, because they didn't have to book offenders into the overcrowded local jail.

The House Criminal Jurisprudence Committee last session unanimously approved this bill, but it never received a hearing on the House floor. Perhaps while the committee has Rep. Woolley there for her bill, they can ask her to commit to giving these bills a floor vote as a condition of passing her enhancement!

These aren't soft on crime bills, they just make the punishment fit the crime, reduce the number of people on whom we hang the label "felon," empower judges and juries, and relieve pressure on both state prisons and county jails. That's the kind of legislation that actually improves circumstances on the ground, instead of just fiddling with symbolic gestures.

That's all I've got time for now, but there are several more bills on Tuesday's Criminal Jurisprudence schedule that merit discussion and support, and I'll get back soon with those and other highlights from next week's criminal justice committees.


Anonymous said...

[quote](a) The purpose of a sentence is to:

(1) provide punishment that is likely to reduce the chance that the defendant will recidivate;
(2) rehabilitate the defendant, "snip"
(3) impose penalties on the defendant that are proportionate
(b) A sentence should be appropriate for the offense committed and the defendant being sentenced.[/quote]

I am astounded that in 2007 any American needs this set out in law to make it so, but full kudos to the guy for doing it.

Fingers crossed!

Anonymous said...

Actually, a3 (imposing penalties that are proportionate to the crime) is the vengeance part of the purpose.

I learned in a class that there are four purposes of imprisonment. You've covered three here: deterrence, rehabilitation, and punishment. The fourth is segregation--while in prison, a person cannot commit any more crimes on those outside the prison.

Anonymous said...

debbie wrote that "while in prison, a person cannot commit any more crimes on those outside the prison"

That wouldn't apply to the Dutton bills - like many "crimes," those are "victimless." Which makes you wonder if they really should be crimes. How many offenders, I wonder, does the segregation purpose really apply to? The parole board thinks that way about drunk drivers, by the thousands, but it's hardly the cheapest or smartest way to address the problem. That purpose broadly applied can lead to misplaced priorities - nearly all prisoners eventually get out, and by focusing on segregation we avoid asking the question, "What happens then?"

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