Friday, April 06, 2007

With clock ticking, criminal justice legislation moving

Writes House Criminal Jurisprudence Chairman Aaron Peña at A Capitol Blog,
Can you hear it? The clock is methodically ticking away as hundreds of bills confront their possible demise. The window of opportunity for passing legislation in this session is effectively closing in coming weeks.
That's sure right - this time of year every delay for a bill increases its likelihood of death, and bills that aren't out of committee in the next week or two likely won't have time to pass at all.

That makes the relatively few bills that are moving a lot more important and likely to become law - after a certain point, legislators are willing to pass bills just to show they've done SOMETHING, since most bills inevitably (thankfully) die. Which leads us to this week's analysis of what legislation passed out of criminal justice related committees - all of these bills, to be sure, still have legs.

Don't De-Regulate Wiretapping!
The worst bill by far to receive approval this week was legislation to de-regulate wiretapping in Texas. Sen. Whitmire's SB 823 was sent to the Senate's local and consent calendar, and Rep. Debbie Riddle's companion, HB 357, passed out of the Criminal Jurisprudence Committee. Here's how I'd previously described this legislation:
In the 'if it ain't broke, don't fix it' department, Rep. Riddle's HB 357 would de-regulate wiretapping in Texas, allowing local law enforcement agencies to operate their own "pen registers" and other wiretapping equipment. Right now all wiretapping in the state runs through the Department of Public Safety, ensuring uniform standards and application of wiretapping regulations that simply could not be enforced if every local agency was doing it. I've never heard of any circumstance where DPS' involvement in wiretapping cases caused any problems - this bill is a solution looking for a problem. And since there really isn't one, I hope the committee rejects it out of hand. This legislation could lead to a slew of unintended consequences and outright scandals down the line that the current regulatory setup is designed to avoid. It would be foolish and irresponsible to endure those risks when there's no evidence of problems with the current system.
This is a terrible bill, IMO - a solution looking for a problem. Lt. Governor David Dewhurst rejected this same idea when it was proposed to Texas' Homeland Security Task Force he led after 9/11, and I hope he'll act again to kill this legislation. It deserves/needs scuttling.

Guns and traveling
The House Law Enforcement Committee passed Rep. Isett's HB 1815, which would close a loophole that prosecutors said allowed police to arrest motorists with a weapon in the car. This is the legislation fixing the problem described in a public policy report I authored and covered this week in the New York Times.

Strengthening probation
House Corrections passed HB 1678 this week, which is this session's equivalent of the big probation reform bill Gov. Perry vetoed in 2005, with a couple of tweaks to accomodate the Guv's stated concerns. The bill has bipartisan support (see prior Grits coverage) heading into the Calendars Committee.

The House Criminal Jurisprudence Committe approved a good bill, HB 312 by Turner, which creates an evidentiary standard for certain probation proceedings over technical revocations. (See Grits' earlier discussion.)

Another probation-strengthening bill, SB 1909 by Ellis, Carona, and Deuell, passed out of the Senate Criminal Justice Commitee this week. Along with HB 1678 and HB 530 expanding drug courts, this is one of the major probation reforms of the session. (See prior Grits coverage and a surprise blog post from the conservative Lone Star Times in support of the bill.)

Senate Criminal Justice also approved SB 1780 by Whitmire which would require 10% of county asset forfeiture income to be designated for drug courts. As I've said before, it wouldn't bother me if that percentage were expanded quite a bit more, but this is a good, precedent setting first start.

It Wouldn't Be The Lege Without More Enhancements
Finally, it's incumbent on this blog to point out that both the House and Senate continue to churn out criminal penalty enhancements despite the fact that our prisons will be 17,000 beds short in five years under current statutes. The Back Gate blog compares the current situation to two trains heading in opposite directions, the reform train (typified by the probation bills mentioned above) and the mass incarceration train, meaning more and more penalty enhancements. While the reform train gets most of the publicity, what's less often said is that it can be easily derailed if the enhancement train isn't slowed down or even reversed.

Here are the lowlights among the enhancements passed out of committee this week:

The Senate Criminal Justice Committee approved three enhancements I think are unnecessary or even counterproductive. The enhancement for burglary of a vehicle was approved (SB 807), while its companion bill HB 1887 was approved by the full House. This legislation appears likely to pass, despite exacerbating overcrowding problems at Texas prisons and local jails. They also approved SB 109 enhancing assault charges against school employees (discussed here) - an inexplicable move given what's going on at TYC right now. And they backed 15 year minimum sentences against meth addicts who cook their drugs near kids (SB 130, discussed here), a bill that risks significant unintended consequences that could harm children as profoundly as the forbidden conduct.

Meanwhile, on the House side, the Criminal Jurisprudence Committee continued its weekly habit of kicking out multiple penalty enhancements as though they thiink there is some cache of empty prison beds out there it's their duty to fill up. That's not true - the state already must lease abuot 2,000 beds from counites at premium prices, and that number is expected to only increase.

I don't know what this bunch is thinking, or if they're thinking at all about the big picture, but they've approved a ridiclous number of penalty increases so far - quite a few more than their Senate counterparts - and don't even appear to be vetting the bills they pass. In the floor debate over Vicki Truitt's bill on burglary of a vehicle this week, Dallas freshman Thomas Latham, an ex-cop, tried to amend his own bill language on burglary of a vehicle to Truitt's. It came out in the debate that Criminal Jurisprudence had approved his bill, too - it's waiting in Calendars to be set for the floor, he said.

That means the Criminal Jurisprudence Committee passed two contradictory pieces of legislation affecting the same code! That's awfully sloppy committee work. Maybe Paul Burka was right the committee needs the House floor leadership to doublecheck its work. Not only are they reporting some real stinkers out of committee, they're passing contradictory stinkers. Those kind of discrepancies (contradictory language changing the same code) should be worked out in committee, not on the House floor.

The other enhancements approved by Criminal Jurisprudence this week include HB 1586 creating the crime of illuminating aircraft with an intense light, HB 1767 boosting penalties for criminal mischief involving traffic signals, and HB 2719 eliminating probation for 1st degree felony injury to a child. Each of these bills has at least two things in common. They address things that are already illegal, harshly punished and vigorously prosecuted, and the Legislative Budget Board claims none of them will cost any money. So they're both unncessary and deceptively expensive.

Finally, Chairman Peña brings word that a penalty increase his committee approved earlier this year enhancing sanctions for stealing copper wiring passed the full House and is headed for the Senate. I understand the Senate is under pressure to pass some of these penalty hikes, but I'd hope that a lot of these nickel and dime penalty enhancements won't make it all the way through the process. At this point in history the Lege needs to get off the enhancment train and climb onboard the reform bandwagon. I predict those who don't will find themselves in a year or three defending their inaction with TDCJ's probems - which frankly dwarf those at TYC - when they finally begin to surface more prominently in the MSM.


Unknown said...

Scott, your observation regarding the Truitt and Latham bills is off the mark. The committee was well aware that Truitt's version was the one negotiated with the Senate and the one likely to pass out of the House. You can note that the Chair was a joint author on that bill, thus indicating that knowledge. The passage of the Latham bill was a nod to the hard work and effort the freshman member put into his bill. More importantly, the committee wanted to give one final opportunity to the member to make his case, on a creative piece of legislation, to the committee that could decide which version would hit the floor. A choice was made and the Senate has the House bill. There are no inconsistencies here just a committee that understands the entire process and respects it's membership. If you will recall last session Chairman Keel did the same thing when he allowed Truitt's version and my version of the bill on to the floor.

As to that process, our committee recognizes the rule of the majority. It is a fundamental underpinning in our democracy. That majority has made decisions on bills that are before it. Those votes are reflective of the wishes and desires of the people they represent. Some may not agree with votes taken but I certainly prefer it to the alternative.

I thoughly enjoy and respect your comments on the issues confronting the various committees handling questions concerning law enforcement and criminal justice. On this occasion your comments on this post do not do justice to the subtlties involved nor do they fairly characterize the good men and women chosen to make those decisions. Good men and women, I simply do not agree. That is a better and more appropriate statement.

Gritsforbreakfast said...

Thanks, Chairman Peña, for your response.

We may have to agree to disagree on this one. IMO, it's the committee's job to reconcile these things before they go to the floor. To pass two bills out that do different things to the same chunk of code, with all respect, passes the buck. To me it's the committee's responsibility to vet the details more closely and make those calls - the process defers that role to them.

To be completely honest, this might not bother me as much if HB 8 hadn't come out of committee precisely as filed and had to be revamped on the floor, or if y'all weren't passing so many other enhancements. What you have called respecting the membership in practice has led to passing quite a few politically driven, budget busting enhancments that pay little heed to the pragmatic and fiscal realities facing the criminal justice system. You've passed good things, too, but most of the penalty increases IMO are bad public policy.

Chairmans Whitmire and Madden are moving heaven and earth to shift away from mass incarceration to other alternatives, and every criminal penalty increase passed deflects from the effectiveness of their efforts. I don't understand the urgency, e.g., to make a felony out of stealing copper wire - it can't wait until the near-term population crisis is resolved?

As you know, I've said I don't mind enhancments if in the same bill the author reduces penalties for other offenses sufficient to free up prison space. But y'all aren't passing those bills, so to me passing so many enhancements seems, with all respect, flat out irresponsible from any fiscal or prison management perspective.

Like I say, I think we must agree to disagree. I understand there are additional pressures to pass enhancments neither of us are discsussing here - especially the backlash from other members if their enhancment bills don't get passed. But I respectfully think it's a disservice to be increasing criminal penalties significantly in the current environment, when our state's incarceration rates already lead the planet. best,

Unknown said...

Scott, there are many more filters beyond this committee and adjustments can be made accordingly. A democracy must however be responsive to the governed. A sizable number of the bills passed will not make it to the governor's desk. That is the process. As to that bill that causes you heartburn, look at the alternative, count your blessings, the process is not finished. Let me leave it at that. Please note, Chairmans Whitmire and Madden's bills will in all likelihood get favorable review in our committee. I admire your concern and continue to respect your opinion.

Anonymous said...

I understand both sides- but most of the probation reform and enhancements is just wheel spinning- the judges in my county never max out sentences or use enhancements- matter of fact they do all kinds weird things and no one seems to care. The probation reform needs to be spread to the district attorneys office that seems to care less about reform. I can request all the treatment in the world and if the ADA over rides my recommendation then there is a kink in the system. The judges don’t seem to care about early term of probation. Some judges will term before the time limit some will never even think about an early term. There are about twenty different scenarios I could use as to why this entire bill passing will not work unless you get all the players on line. Please remember until you pay and staff probation officers correctly they never have the time nor care to refer the defendant to treatment. When you do not know your defendant you do not know their needs. If your pay sucks then get a year or two of casework and head off in another direction leaving 150 plus offenders without an officer for about 4 months. High retention causes more problems than you can imagine, or care to.

Kind of like a football play- You tell the play to running back and wide receivers but forget to tell the line and quarterback.

Anonymous said...

Wow. I am impressed that Chairman Pena has posted here. I may not agree with his post, but my opinion of our elected representatives has been altered for the better. Maybe other elected officials could take note?

Catonya said...

"Those votes are reflective of the wishes and desires of the people they represent."

I respect the spirit of this statement. But sadly, the majority of citizens have no idea what legislation is making it's way through the judiciary. The reasons are many and varied but the biggest is due to a lack of easy access to the information. Newspapers and local news broadcasts cover maybe 20 percent(at best), of pending legislation.

Wishful thinking but - wouldn't it be great if one page in the newspaper was dedicated to listing the week's pending legislation and contact information for area representatives...


(I swear Blogger's word verification knows who I am and it hates me) :s

Anonymous said...

Exactly Catonya!!!! Nor do the judges, ada's or defense lawyers know. You have bits and pieces but no whole big picture. I understand where Pena is coming from but as a tax payer I expect better. I feel like the lege is just putting Band-Aids on problems that will bite them later. TDCJ is broke - so fix it! The public can help if they are informed - with ideas, ground work, private resources. Maybe a newspaper is in order-Here is where grits new job comes in. Also the judges need a watchdog. Some of them just willy nilly their judgment. Maybe we should lean toward appointed judges by the lege????

Ms. Geiger said...

I just came home from visiting my daughter in prison and I think that more of our state reps should do the same. As a taxpayer, I am appauld by the conditions and lack of services. The classes are available but there is always a reason why she cant take the classes she needs to finish her degree. She is aggravated, so she has to serve 1/2 of her DWI manslaughter, but if it had happened in Dallas and she was a member of the Dallas Cowboys, she would be home now. I am not opposed to her serving time, I just would have liked to have seen some equity in sentencing.

Anonymous said...

Senator Whitmire and Rep Madden are working hard to make things fair and get TDCJ out of a mess and stop wasting money that could be used for better things.

A bill thrown in regarding stealing copper wire is in bad taste, it does nothing to help the bad system that TDCJ is now and does not waste the money TDCJ does.

Your copper wire bill can wait, copper wire is hardly used for anything anyway, it is a contaminent and this bill is a contaminent also. Do something that is useful and helps, put families back together and stop this thrown them in prison attitude and waste of human life.

What you think is important,copper wire is not as important as a child getting their mother and father back together and having a family a human life and family life is far more important than copper wire, look at yourself in the mirror and see if you see copper wire!!
This is addressed to Mr. Pena and I hope he reads it!!

Anonymous said...

So now we have time to pass out "attaboys" to freshmen who sponsor "similar" bills that have no chance of being approved on the House floor nor in the Senate? Seems like a big waste of time that could be spent more constructively. You may wish you had those moments and hours as sine die draws near...

Anonymous said...

Quite to the contrary, as Rep. Pena correctly stated, last session's Chairman, Rep. Terry Keel, allowed two similar bills on to the House floor. The bill no one gave a chance to was the one carried by Rep. Pena. The best bet at the time was Rep. Truitt's bill. In the end it was Rep. Pena who passed his bill in the House. I for one am pro-choice. There is nothing wrong with presenting options. Let's face it what many are masking here is that they philosophically disagree that punishment is a deterent. I am sorry to say but the most inflexible people in politics are liberals. This posts and many of the comments evidence this point.

Gritsforbreakfast said...

Anon @ 12:03, your history is as bad as your economic analysis. Last session Truitt's HB 151, not Peña's bill, was the one passed by the House. As for liberals disliking punishment, that's silly - liberals propose as many enhancments as conservatives do. The issue here is that Texas is already 2,000 bunks short, will be 17,000 beds short if we keep things as they are, and it will be worse if legislators don't stop with the politicized enhancments.