Penalty hikes could thwart design overhaul of Texas criminal justice system

To Kathy's chagrin, in the restroom off of my home office a couple of years ago I scrawled a provocative quote from furniture designer Richard Tuttle in marksalot on the wall that I contemplate every time I enter (which was the point). "A great designer has to know everything," Mr. Tuttle reminds me each day, "while an artist doesn't have to know anyhing." Here's the full quote from which the line is excerpted:

"A great designer has to know everything (language, history, ethnography, anthropology, psychology, biology, anatomy, etc.), while an artist doesn't have to know anything. This polarity ... is the starting point. But ironically, to really appreciate design, it is not about knowledge, but about the experience of living with the work; you don't have to know anything, and you get its 'information' almost through osmosis. Whereas to appreciate a good artwork, you have to bring and apply absolutely everything you know. Why is that?"

- Richard Tuttle,
Design ≠ Art, National Design Museum, 2004

As criminal penalty increases, eupemistically known as "enhancements," continue to pass out of the Texas House and Senate at their current rapid pace, Tuttle's words ring truer to me now than ever, mainly because of my perhaps idiosyncratic view that most "enhancements" fall on the purely "artistic" side of the equation Tuttle identifies. More important "design" considerations require subtlety, nuance and maintaing a constant eye out for avoiding unintended consequences.

Examples of the latter include Chairmans Whitmire and Madden's probation reform legislation - hammered out over many years in multiple interim studies and public hearings, vetted by a variety of interest groups, and supported by bipartisan supermajorities in each chamber. Bills like SB 1909, HB 530, HB 1678, and HB 3200 represent the fuititon of years of painstaking work and analysis that to my mind demonstrated some of the best qualities of the legislative process.

By contrast, criminal penalty increases or "enhancements" almost always are purely reactionary - designed to "send a message," as the polticos say, as opposed to reducing crime by a quantitatively definable amount. As I've written earlier:

Bills increasing penalties for crimes are to legislators what poetry is to the artist - a written form of self expression. It's a way legislators say, "This is what I stand for. This is what I'm against." Well, who isn't against child molestation? That's hardly the point if jacked up penalties make family members less likely to report crimes.

Indeed, at this point when people on either the left and the right tell me the purpose of a bill is to "send a message," even if it's a "message" I agree with, I immediately become bored and uninterested. We need to change policies that improve real-world outcomes, not send "messages" through legislation.

It turns out, enhancments don't always come from legislators themselves but often from the Texas Legislative Council, a shadowy entity full of lawyers that drafts most bills at the Lege. The group over the years has come to use penalty increases as a baseline approach to addressing crimnal conduct. The Texas Observer blog reported recently:

Ana Yañez-Correa, executive director of the Texas Criminal Justice Coalition, tells the Observer that legislators are not necessarily enamored with enhancements, but that they are basically the default language the Council uses when drafting a bill. So if a rep asks Lege Council to draft them a bill that, say, cuts down on graffiti, without any more specifics, the first draft is usually simple enhancement language. Easy to make it look like you’ve gotten tough, without doing anything to really fix the problem.

“Automatically, there’s this assumption that increasing the penalty for the crime will decrease the likelihood of a person committing a crime,” Yañez-Correa said. “We need to think about: What actually is going to deter the criminal activity?”

When it comes to sculpture or murals, I'll take art over design 8 or 9 times times out of 10. But when it comes to design vs. art in the legislative process, in good conscience I think Texas must eschew purely aesthetic proposals - particularly those enhancments whose purpose is not to protect victims or prevent recidivism but to regiser a position or "send a message" of disapprobatin about some already-illegal offense.

Both chambers in the 80th Texas Legislature have approved more enhancements already than in 2005. With everything that's happening on probation reform and drug court expansions, it seems counterproductive and wrongheaded to continue to pursue highly politicized laws that could dilute the positive impact of those long-term efforts.

Quite a few enhancement bills are tied up in the House Calendars Committe right now, while several others that already passed the House are waiting for a Senate hearing. It would be a great mitzvah to Madden and Whitmire's efforts to redesign the system if most of these bills moved no further.