Tuesday, March 15, 2011

Drug, graffiti sentencing, criminal discovery highlight House Criminal Jurisprudence agenda

Here are some of the big issues up in the House Criminal Jurisprudence Committee today:

Discovery in criminal trials
Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.

Punishing graffiti
Rep. Jose Menendez has yet another graffiti enhancement, but one which at least pays for its penalty increase by reducing higher-level graffiti penalties. It would stop the practice of charging the offense based on the amount of damage caused, but increase the base penalty for graffiti to a Class A misdemeanor from a Class B, making it state jail felony on the second offense, or for graffiti "on a school, an institution of higher education, a place of worship or human burial, a public monument, a government building, or a community center that provides medical, social, or educational programs." Higher-levels of offenses up to a first-degree felony for graffiti would be eliminated. It's rare (and fiscally responsible) for a bill to "pay" for penalty hikes on one class of offenders by reducing them for others, which is what this bill does. The legislation is less cognizant, though, of counties' financial situations, requiring three days of jail time, mandatory, for all graffiti offenses. The fiscal note declares that "A county jail would incur costs associated with increased jail time per offender, but it is anticipated those costs could be absorbed within existing resources." Is that true in places like Harris County where jails are already completely full, shipping inmates off to other states and counties? Perhaps not. Interesting bill, though of course all of this is basically symbolic because clearance rates for the crime are astronomically low. I'm of the opinion that graffiti policy, as is the case with many social problems, needs to look beyond criminal justice approaches.

Rationalizing petty drug sentences
Rep. Harold Dutton has HB 853 up that would reduce penalties for less-than-a-gram drug offenses from a state jail felony to a Class A misdemeanor, a move which would save $120 million-plus during the next biennium, and $80 million per years in the out-years, according to the fiscal note. In my mind, I consider this companion legislation, in a way, with Dutton's legislation heard last week in the same committee reducing low-level marijuana penalties, mainly because, as a practical matter, space would need to be freed up in county jails. If both were passed, it would save money for the state and counties and allow government to focus scarce criminal justice resources on areas that more directly affect public safety. (RELATED: "Possession busts driving increased drug arrests: States tired of footing the bill.") Also, several items are up related to criminalizing synthetic cannabis, etc..

See the rest of the full agenda here. Click here to watch once it begins, which should be any old time now.


Anonymous said...

A little heavy on the synthetic cannabinoids, don't ya think? I mean, just when most of the country is coming around with regard to marijuana laws, here in Texas we wanna make sure and do the same thing with regard to K-2 and other like products. They say that the stuff is making kids kill themselves. I'd be willing to bet that more people overdosed and died from drinking too much water last year. But hey, "God wouldn't like it" according to a few, so poof, it is now going to be illegal. It will now be yet another reason to lock people up in the State of Texas, and to send the bill to people such as myself who have to pay for it.

Anonymous said...

They'll have to define "graffiti on a school." In Katy, they once tried to charge a girl with a state jail felony for writing her name and her boyfriend's in the girls bathroom.

A Texas PO said...

Michael, the synthetic cannabinoid legislation is being spurred by special interests, and the fact that it's something we never heard of before, there are some people ODing on the stuff, and we don't yet know the full effects (short and long-term) of the substances, so the Lege is "trying" to get ahead of the curve. We'll see what happens.

I like the idea of reducing petty drug possession down one degree, but my great concern, as a probation officer, is that there are several of the less than a gram offenders who need increasing levels of rehabilitation and treatment while on probation. However, CSCDs often have a very difficult time getting in-patient treatment services for misdemeanants. CCFs often don't want to accept misdemeanants since they won't receive any funding from CJAD for these folks as CJAD only funds CSCDs for the first six months for these folks. Under proposed legislation, that would end completely. TAIP funds (which are also under attack) can be used to outpatient services, but folks addicted to cocaine and methamphetamine, unfortunately, sometimes need more help than outpatient treatment can provide. I really hope CJAD can change their approach for misdemeanants, espcially if this proposal passes.

Then there's the whole idea that many misdemeanor sentences end up being less than 30 days. Who is going to agree to be on probation for 2, maybe 3, years, when they can do 30 days in county (with credit) and be back out on the street doing the same ol' thing?

Anonymous said...

Because Adult Probation may be losing Misdemeanor funding, it is not a good idea to reduce these offenses to Misdemeanors. Those who possess cocaine, methamphetamine, etc. are felony offenders regardless of the amount.

Like the Texas PO said, the offender will accept a plea agreement for minimal jail time and will not change behavior. This will result in the offender becoming "a regular" on County Court at Law dockets and at the County Jail.

It is true the offender won't ever go to prison due to the offense, but he/she will go to jail and that will cost the County and local municipalities additional monies because more time will be spend to with this type of offender than what has been usual, as the offender will hardly ever be supervised as a probationer because it is too easy to do 1-30 days in jail versus 6 months to 2 years on probation.

Passage of this type of bill is just giving the offender what he/she wants. It does nothing for Public Safety. It does nothing for the health and safety of the offender.

It is a bad idea.

Gritsforbreakfast said...

8:52, here's what it does for public safety: It opens up beds so you don't have to release more dangerous offenders early. Texas has no money to build and the Governor wants TDCJ to cut $786 million, so the status quo is financially untenable - which prisoners should they choose not to incarcerate instead, sex offenders?

Texas PO, you raise a legitimate concern. But the savings to the state would be such that it would probably be worth adjusting those policies and to give you that option and the state would still save tons of money.

DEWEY said...

"which prisoners should they choose not to incarcerate instead, sex offenders?"
I have no problem NOT incarcerating certain sex offenders, like those caught "peeing in public" (behind the dumpster), simple "exposure" etc. Also, why should they have to register as a sex offender FOR THE REST OF THEIR LIVES ??? It's a waste of taxpayer's money.

Anonymous said...

"which prisoners should they choose not to incarcerate instead, sex offenders?"

Nowhere was it mentioned to let Sex Offenders out of prison.

Because State Jail Felony Drug Offenders are most likely going to become misdemeanors, these offenders won't be going to prison. There won't be a need to "pick" another offender to not go to prison. Although it would be a good idea to let out of prison those who are deserving but the Parole Board doesn't let people out like they are supposed to.

Current State Jail Felony Drug Offenders will be going to County Jail due to the reduction of the level offense. These offenders certainly won't accept plea agreements for probation, as even a six month probated sentence would be so much less desirable to an offender than a 30-90 day jail sentence. Furhter, the 30-90 day jail sentence will be a 10-30 day sentence with good time credit not to mention the work release and weekend jail time plea agreeemnts that will materialize for these offenders.