40% of Criminal Jurisprudence bills boost criminal penalties

As has probably been the case every legislative session in living memory, bills boosting criminal penalties account for a lion's share of legislation coming out of the Texas House Criminal Jurisprudence Committee this year. According to Emily Ramshaw at the Dallas News ("Texas legislature cranking out a variety of stiffer penalties for obscure crimes," May 1), "Of the more than 100 bills the House Criminal Jurisprudence Committee has endorsed this session, roughly 40 percent strengthen penalties for crimes or tighten restrictions on criminal offenders."

I was quoted in the story: "These are easy bills to pass," said Scott Henson, a criminal justice expert turned public policy blogger. "No one can say, 'I'm for stealing air conditioners.' "

The article also quotes two senior Democrats who strongly disagree over the direction of the committee on enhancements, and while I respect each man immensely, I must say I disagree with both of them:

Rep. Pete Gallego, who chairs the Criminal Jurisprudence Committee, said there will always be some criminal enhancements, from lawmakers who "have an incident in their home district, and want to make sure their folks are protected next time."

But he said these measures are far outweighed by the progressive legislation his committee has endorsed, including bills to ban execution of criminals with mental disabilities, commission a study on the death penalty and broaden mentally ill offenders' insanity defense.

"Texas was once a 'lock 'em up and throw away the key' state," said Gallego, D-Alpine. "That's no longer the case."

Rep. Harold Dutton, D-Houston, couldn't disagree more. During the early 1990s, he said, "Texas was building more prisons than schools." Late that decade, lawmakers changed their strategy, rewriting the penal code to focus on diversion and rehabilitation. Now, Dutton says, Gallego's committee is taking Texas back in time, bowing to attorneys and special interest groups and sending more people to prison.

"Soon we're going to have not just 150,000 prisoners in Texas, we're going to have 250,000," Dutton said. "It's a committee that's hostile to average citizens and plum for prosecutors."

For Chairman Gallego to claim Texas is no longer a lock-em up state strains credulity, though certainly initial steps have been taken to turn the ship. But I think Dutton is wrong, too, that the Criminal Jurisprudence committee has somehow shifted gears to approve more enhancements than in the past.

Under Gallego's leadership the committee has voted out a lot more positive legislation than in 2007 when Criminal Jurisprudence was a virtual killing field for reform legislation and really was under the thumb of the prosecutor lobby. But let's be clear:

One in 22 Texans is still in prison, in jail, on probation or on parole - as many people as live in Washington, D.C. and more people than live in four US states are under control of Texas' criminal justice system at any given time. The number of people actually incarcerated has leveled off but until the sheer volume declines, it borders on absurd to say it's "no longer the case" that we rely too much on incarceration.

Texas has indeed shifted more resources toward prison diversion in recent years, but that's been done through other committees and the Criminal Jurisprudence Committee has simultaneously been working at cross purposes the whole time, continuously creating new felonies and boosting penalties for existing ones even while other legislators worked to limit prison population growth.

It's also worth noting that prosecutors aren't the main source of most so-called "enhancement" bills, special interest groups are. Shannon Edmonds at the Texas District and County Attorneys Association estimates only 3% of so-called "enhancements" are proposed by prosecutors, and in my experience that estimate is about right. As long as I've been watching this committee - under both Democratic and Republican chairmen - the trend of passing dozens of new penalty increases every session has looked very similar.

Who are these special interests? Just about all of them. The goat herders want harsher punishments for theft of a goat. Teachers and school districts want to criminalize disobedient students. The telecom and electric companies want higher penalties for theft of copper wire. Coastal fisherman want to boost penalties for poaching shellfish.

Every part of every code is laden with "enhanced" penalties for narrow special interests, IMO largely because the political class has an exceedingly limited view of government's role and a shortage of good ideas for how to curb behaviors that make us mad or infringe on commercial interests. It's not that special interests don't understand, at some level, that their enhancement bills don't work. After all, they keep having to come back asking for higher penalties year after year.

On the Senate side, Ramshaw's article failed to mention, Criminal Justice Committee Chairman John Whitmire has held the line much more strongly on boosting criminal penalties, largely because in the Senate the same committee is responsible for prison diversion efforts so it's easier to recognize the cognitive dissonance of doing prison reform and penalty hikes at the same time. For his consistent prudence on this matter, the state owes Sen. Whitmire an enormous debt of gratitude: If it were up to the House of Representatives, it's not an exaggeration to guess that perhaps 5 or more times as many new penalty hikes would become law every session.

I should also mention that Emily portrayed my view on the future of enhancements as slightly more pessimistic than is actually the case:

Henson, the former director of the American Civil Liberties Union's Police Accountability Project, said criminal enhancements aren't likely to end – ever – because they're an easy "freebie" for lawmakers. Though sending more people to prison costs the state money, lawmakers don't have to take that into account in their bills. It's how Texas has more than 2,300 felonies on the books, Henson said – 11 of them involving oysters.

"At this point, we've criminalized everything that remotely needs to be criminalized," he said.

My point, though, wasn't that it's impossible to "ever" put an end to the Legislature's enhancement fetish, but that the only way to stop it would be to put an accurate price tag on each new penalty hike.

Traditionally, the Legislative Budget Board tells the Lege that all penalty increases cost nothing and needn't be accounted for in the state budget. If LBB were disallowed from claiming more incarceration is free and there was a rule that every new penalty hike required new money in the state budget, I actually believe much of this foolishness would die down awfully fast.

As I've written before, penalty hikes almost always reflect a lack of imagination about other ways to influence human behavior. Increasing current penalties should be a last resort since it's among the least effective approaches - once something is illegal, after all, making it more illegal won't reduce the number of people who do it much. But usually penalty hikes are the first thing legislators want to do, even though by definition it's an admission that the same strategy (criminalizing the behavior) failed to solve the problem in the first place.