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.