Monday, February 21, 2011

Predictable as Bluebonnets in Spring: Biennial March of the 'Enhancements' Begins Anew

While I'm pleased to see some key innocence-related legislation up in tomorrow's House Criminal Jurisprudence Committee, I'm dismayed if unsurprised to see several so-called, Orwellian-termed "enhancement" bills (i.e., legislation creating new crimes or penalties, and/or increasing existing ones) also made the cut for the committee's first substantive hearing. (Last session, at least 40% of bills assigned to that committee increased criminal penalties, and the parole board counted 59 new felonies created by the 81st Legislature, bringing the total to 2,383.) Dozens more new crimes and penalty hikes have been proposed this session as well. Indeed, there will be too many over the course of the session for me to do this every week, but just por ejemplo, here are summaries of the three enhancement bills the committee will consider tomorrow:

HB 99 by Trey Martinez-Fischer would increase the penalty for DWI from a Class B to a Class A if the driver's blood alcohol content is above .16 or they're operating a commercial vehicle. There's no fiscal note on this yet, but it would boost costs for counties as well as move drunk drivers up the penalty escalation ladder more quickly, getting drivers a felony on the second offense if one of them exceeds this threshold. In a rational world I'd expect this bill to die because the state can't afford ever-stiffer criminal penalties as the only way it deals with social problems like drunk driving, but since the Legislative Budget Board is likely to say the cost is "insignificant" (a politically convenient lie that provides cover for legislators but doesn't mitigate costs to counties and the state), this is the sort of thing that historically has been easy to pass through the Criminal Jurisprudence Committee.

HB 221 by Allen Fletcher would increase the penalty for burglary of a vehicle - a crime that ranges from lifting a CD off the seat of an open convertible to smashing a window to steal Christmas presents in the mall parking lot - to a state jail felony from a Class A misdemeanor on the first offense. The bill's only saving grace is a requirement that the judge place the defendant on community supervision on the first offense if they're under 21, but that will still result in hundreds of new state jail inmates. Like HB 99, there's no fiscal note published yet for HB 221, but if it were to add, say, 600 new state jail felons per year to the system, at an average cost per year of $43.03 per day (as of FY 2010, from the LBB's Uniform Cost Report - pdf), the bill would cost between $20-30 million this biennium and upwards of $37 million per biennium once it rolled out. Whether LBB assigns a fiscal note to the bill, or whether they low-ball it as they have in the past, remains to be seen. But this legislation directly shifts costs from counties to the state, no matter what LBB's fiscal note says.

HB 341 by Fletcher is another draconian enhancement bill creating a new first degree felony if a suspect hides inside a private dwelling in order to evade arrest or detention. A "detention" can be anything from arrest to stopping me on the street to ask questions (perhaps on suspicion of babysitting while white). So following that logic, consider this hypothetical scenario under the text of the bill: A cop stops me on the street to ask questions; I refuse and ask if I'm free to go. The cop says no, but I leave anyway, enter my house, and lock the front door, telling her to come back with a warrant. In that hypothetical, I have evaded "detention," so under HB 341 won't that scenario now garner a first-degree felony? And if so, does the punishment fit the crime? Under current law, the first-degree felony charge only applies if the suspect concealed themselves in a building in order to commit a "felony, theft or an assault," which makes a lot more sense (but of course is itself redundant with other applicable criminal statutes) HB 341 would dramatically expand the number of evading charges that turn into first degree felonies, the punishment for which is 5-99. After all, if someone runs on foot from the police, where are they going to go hide besides their home, or someone else's? Evading charges are plenty tough already, and these are not all the type of offenders who merit potentially decades-long prison sentences at the taxpayers' expense.

All of these bills fall into the "can't afford it, don't need it," category, but they're the kind of thing this committee has approved by the dozens in recent years. Don't hold your breath, but the one prayer for stopping enhancement legislation from passing will be if the LBB tells the truth about the bills' cost instead of claiming they're "insignificant." Maybe then they can be stymied from the get-go, as they should be.


Pam G said...

Martinez-Fischer's bill is probably backed by Bexar County DA Susan Reed who made going after drunk drivers a priority in her last election.

Hook Em Horns said...

Nothing has changed in Austin. NOTHING! The sad thing is Texan's DON'T CARE. Never say never? NEVER SCOTT! These people don't get it.

rap said...

you know how politics go.

Anonymous said...

A little business as usual for Allen Fletcher, how did this guy sk8 on the fraud his company is involved in besides letting his 2 partners take the fall. How long will Texans continue to let these crooks turn your state into a police state. And these comi’s call democrats socialist, give me a brake Texas voters are dumb.

Hook Em Horns said...

Texas voters are dumb.


Gritsforbreakfast said...

Now now, Hook 'em, them's us!

Hook Em Horns said...

Gritsforbreakfast said...
Now now, Hook 'em, them's us!

2/21/2011 05:48:00 PM


I know Grits. I really do but it's so damn frustrating.

A Texas PO said...

Several of these bills are ridiculous and seem to have been filed solely to "prove" to the constituents that their reps are working in Austin. HB47 and SB289 blow my mind: do we really have that big of a problem of people manufacturing/selling/possessing/distributing spike strips? Maybe I'm living under a rock, but I know of no one who has encountered this problem at the hands of civilians.

I am encouraged by the bills seeking to address the issue of synthetic narcotics that are beginning to invade our communities, but with the pending reduction of diversion and treatment funds, adding more controlled substances to the books will ceertainly lead to more problems rather than solutions.

I was also shocked by HB819 to abolish the death penalty. I couldn't help but laugh out loud knowing full well this will never make it out of committee.

And maybe I missed it, but I don't recall seeing any bills filed regarding the "no refusal" policies several counties have enacted for those suspected of DWI. I surely would have thought this Legislature, in its infinite wisdom, would address that issue.

Scott Stevens said...

Regarding HB341 and your scenario of entering your own home, I don't believe one's own home is covered by this legislation. It requires that one not have the effective consent of the owner. That would make it impossible to commit this offense in one's own home.

That does not mean I think this legislation is appropriate, just that after looking at it I don't think it criminalizes entering or remaining in one's own home.

Regarding "Aggravated Driving While Intoxicated," I just hope no one suggests that it become a misdemeanor 42.12 Section 3g type thing where the sentence must be served day for day or good time/work credit not be permitted for at least one-half the sentence.

I keep waiting for the pendulum to swing back away from the over-the-top, knee-jerk criminalization of all possible conduct, but it hasn't happened yet.