Tuesday, March 13, 2007

Despite Texas prison overcrowding, Criminal Jurisprudence keeps hearing enhancements

Texas' full prisons result in large part from increased penalty lengths for everything from the most horrific crimes to the most mundane. This afternoon's agenda at the Texas House Criminal Jurisprudence Committee hearing shows how that happens.

While some in the Legislature recognize that it's time to shift gears away from mass incarceration, especially for low-level offenders, so far Criminal Jurisprudence isn't doing its part to reduce Texas prison and jail populations. Instead they've moved this session to boost already-stiff penalties for child molesters, approved life sentences for certain drunk driving deaths, and will likely increase penalties for burglary of a vehicle. Even if Chairmans Madden and Whitmire successfully strengthen the probation system and rein in the out of control parole board, Texas' prison population will continue to burst at the seams if the Lege keeps indulging in its biennial ritual of boosting criminal penalties.

Today the Criminal Jurisprudence Committee will hear a handful of good bills along with a number of additional penalty enhancements and nickel and dime punitive restrictions on offenders. Here are some of the good bills of interest up in the House Criminal Jurisprudence Committee today:
  • HB 312 by Turner: Creates an evidentiary standard (preponderance of the evidence) by which the state must prove a defendant was "able but unwilling" to pay probation fees. Currently non-payment is frequently taken as prima facie evidence of non-compliance.
  • HB 403 by Hodge: Would release parolees from supervision who successfully complete parole board requirements for participation in drug and alcohol treatment programs.
  • HB 800 by Dutton: Provides for expunction of records in cases resulting in deferred adjudication where a defendant successfully completes supervision requirements.
And then, the enhancements:
  • HB 126 by Delisi: Adds tampering with a government record to the list of offenses that may be enhanced as part of "organized criminal activity."
  • HB 1766 by Peña: Enhances the penalty for petty theft of copper, aluminum or bronze wiring to a state jail felony regardless of the value of the wire.
  • HB 347 by Hamilton: Enhances the penalty for harboring a runaway child from a Class A misdemeanor to a state jail felony of the harborer is a registered sex offender.
  • HB 1093 by Geren: Expands the area around a funeral service where "picketing" is prohibited.
These four bills all have one thing in common: The Legislative Budget Board says they won't cost the state any money. That's a politicized fiction. Of course keeping more people in prison longer costs more money - any fool can see that.

By giving these bills fiscal notes of zero, LBB would have legislators believe their punitive impulse incurs no financial costs. That's why I said in 2005 that LBB is responsible for "red ink" in Texas prison budget - they've consistently understated costs of penalty enhancements for many decades in just this way.

In particular, the bills by Peña and Hamilton expressly increase penalties from a misdemeanor to a state jail felony, shifting incarceration costs from counties to state government. But those costs aren't recognized for purposes of state budget making. I wish I knew why.

In the dumb bills with no purpose category, we find HB 1480 by Castro, which would add to the list of information sex offenders must report the URLs of websites they visit or "intend to visit" every day. I don't know about you but my web surfing habits shift over time - sometimes day to day - and I don't think gathering such data will provide useful information for law enforcement or serve any purpose than to give another opportunity for registrants to commit a "technical" violation through incorrect reporting.

Finally, I'd be remiss if I didn't mention another problematic bill the committee will hear today by Rep. Phil King: HB 628. This bill would allow the lead police investigator in criminal cases to sit at the prosecution table throughout a trial, even when they may be called as a witness. The prohibition on witnesses hearing other witnesses' testimony in the Rules of Evidence exists for good reason, and has never inhibited the prosecution of crime in this state. I see no reason to risk tainting police testimony in the manner the current Rules are designed to prevent. This falls under the category of "If it ain't broke, don't fix it."

Those are the Criminal Jurisprudence highlights this week - see the full committee agenda here, and you can watch the hearing today at 2 p.m. or on adjournment of the full House.


Anonymous said...

I would really suggest you actually read the bills you post about. HB 126 has nothing in it about enhancing penalties if the victim is a child.

Anonymous said...

Here is the "child" extract.

(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a); [or]
(12) any offense under Chapter 20A; or
(13) any offense under Section 37.10.

As far as I can tell, anyone under 18 is a child.

Gritsforbreakfast said...

Good catch - the second anonymous rightly identifies the section I misread as narrowing this bill to children. I've corrected it in the main text. Thanks.

Anonymous said...

Now I see the problem, item (7) about a child doesn't have anything to do with the added item (13) which is about Section 37.10

Anonymous said...

Now that we've got all that straight. Wasn't the point that the legislators should look long and hard at enhancements that make for long prison terms and figure out how to pay for them before voting?

Poverty Lawyer 1 said...

HB 312 - what are it's chances of passing? That would be a great idea. I'd love to see the State have to prove that a defendant actually could've paid but didn't. Lots of judges will disregard it if passed, but some would heed the change and that would be big.

Gritsforbreakfast said...

On HB 312, I like it's chances. I see no reason it wouldn't get out of committee, and Turner should have the leverage in Calendars to get a floor vote. Of course, the odds are stacked against virtually every piece of legislation - it's a lot easier to kill a bill than to pass it - but with the push for reducing revocations for technical violations, I think it's got a good shot.

Poverty Lawyer 1 said...

And HB 628 means, even if I invoke "the Rule" to keep witnesses out of the courtroom, the lead officer will get to sit at the prosecution table and direct the show/orchestrate testimony? I can't even begin to describe how bad that would be...

Anonymous said...

My husband worked as an LCDC in aftercare, then ran a womens residential facility, and now is a parole officer. As good as HB 403 sounds, there are not enough facilities to provide 5 months of residential treatment to anyone, much less thousands of parolees, and few people will build any since the state pays only $30/day for their care.
When Ann Richards began the Substance Abuse Treatment program in prison there were numerous aftercare facilities. Most have long since shuttered their doors, since the R's cut the program down several years ago. Now no one will trust the state enough that they will be willing to risk borrowing the kind of money it will take to open enough treatment centers, since the next round of budget cuts may shut everything down.

Anonymous said...

Most of the folks subject to "enhancement" started their careers as misdemeanor offenders. Those of us who work with that level have long been frustrated that we have no facilities for treatment. Our answer to those who want it is that they need to commit a felony, then assistance is available.

If you want to get a grip on the problem, start on the bottom - with juvies and misdemeanors. Those are the folks with whom you will see the greatest impact per dollar spent. Of course, neither is "glamorous", so neither is funded..

Anonymous said...

Please don't put more people in prison for longer terms. We can't afford the prisoners we have. How long will it be before we have so many laws that everything is illegal in Texas!

Oh my God, did I just spit on the sidewalk? Spit'n on the sidewalk is probably a state jail felony now.

Anonymous said...

who is this castro guy? is he serious? having so's report the urls they plan to visit? huh? what happens when he/she hits a website and it sends 'em to another website? oops! does that mean they're in violation? c'mon, get serious! how silly can these redneck legislators get? and how are they going to enforce it?

Anonymous said...

one more comment about hb1480...WHO do they report the info to? the sheriff/police dept? those folks are overworked already, they don't need all the so's calling in every day reporting what websites they are going to that day. get real.

800 pound gorilla said...

It's all about symbolism and nothing about substance. Of course, you're not going to add costs - if prisons become overcrowded and you have to let them out early. And if you hold convicted criminals as hostages to squeeze taxpayers for higher taxes that is what will happen. They do it all the time in Oregon. That's how the GOP masquerades as "friends of taxpayers". That and an income tax that hasn't been indexed for 25 or 30 years where nearly all minimum wage earners pay the highest 9% marginal income tax.

lindad said...

It should not require the budget office to do the math on enhancement bills. The sponsors of these bills know full well. If you take simply the 'cause de jour' Jessica's Law which can garner such frenzy and political points:
approx. 10,000 sex offenses tried in Texas every year (none that I have heard of that fit the criteria of the horrendous crime that Jessica's Law seeks to prevent).
Now each of these would be sentenced to 15-25 years minimum.
Year one: 10,000 total
Year two: 20,000 total
Year three 30,000 total and so on for the length of (say) 20 years. By year 20, the number would remain constant, fueled by the new 10,000 to replace the outgoing Year one offenders: 200,000 prisoners on this offense alone.
I have read Grits posts on the hope that monetary sense would prevail in the Senate committee to stop enhancement abuse. However, Ogden has himself a bill that would deny any parole of any offender who is required to register as a SO, for any reason. Where is the sanity, when we don't even want life without parole for capital murder?
Now apply the same criteria to the administrators of the TYC. Are we really saying that we will sentence state officers to life without parole for these repeated offenses? How about the death penalty provisions for second offenses? If not, why others?
The Legislature can so easily pass a mess and run away for two years. Dewhurst and Abbott however, owe it to the citizens of Texas to be honest and stand up to the media frenzy, not aiding and abetting. Bad law is not better than no law.

Gritsforbreakfast said...

lindad, fyi the cost is actually about $16,000 per year, and that's likely substantially understated for various reasons. So a 15 year minimum gets you to a quarter of a million (present day) dollars per inmate.