Oppose legislation that could prevent reporting police misconduct, bloat budget

There's a bill up in House Criminal Jurisprudence today, HB 41 by Rep. Jose Menendez, that would create a new state jail felony for making false allegations that a police officer engaged in felonious conduct, upping the charge from a Class B misdemeanor.

Under this bill, a false statement to the police would become "a state jail felony if the false statement made by the actor with the intent to deceive alleges that a peace officer engaged in conduct that constitutes a felony offense."

Talk about a bill rife with unintended consequences! Average people don't know the law and have no immediate way of knowing whether they're alleging a felony when they report police misconduct. And despite the "intent to deceive" language, it's all but certain this law, if passed, would be used to intimidate potential witnesses out of reporting police misconduct at all. After all, seemingly most police officers with citizen allegations against them think their accusers are intentional liars: Just ask them. Sometimes it's true, sometimes it's not, but you can imagine a corrupt officer saying to a victim or witness of police misconduct, "Who will they believe, me or you? I'll say you're intentionally lying, which is a felony. You're the one who'll be going to prison."

I should also add that, as usual, the Legislative Budget Board has given HB 41 a fiscal note saying its cost is "insignificant," which is absurd on its face. In this case, that could only be true if cops only used the law to intimidate potential witnesses of serious misconduct, and there were no people actually making false reports. 

Let's assume instead that there are, in fact, some people making false reports. Let's say people are convicted under this law just 10 times per year statewide (probably a low estimate). If Texas owned all its own prisons, the cost might well be "insignificant" to feed, clothe, etc., ten extra prisoners per year. But since TDCJ pays for extra private capacity (more than 11% of all beds), and since state jail beds are essentially fungible, really the marginal cost of each new prisoner is the cost of the last private state-jail bed leased.

At 2010 rates (according to the latest Uniform Cost Report [pdf] from LBB), state jail felons in private facilities cost $30.73 per day to house, plus an extra $4.22 in costs to the agency (transportation, classification, etc.) that aren't paid to the vendor, giving us $34.95 per day or $12,757 per inmate per year at private state jail facilities. If state jail sentence is two years (served day for day with no parole), each offender convicted under the law would cost the state $25,513. Under these (minimalist) assumptions, each year the state will incarcerate new offenders under this law that will cost taxpayers $255,130, which, for example, would be enough in the budget to keep from charging counties fees for having local jails inspected. But those costs won't be accounted for in the budget if this bill is passed, even as over time it silently offsets reductions elsewhere in state agency budgets.

"Fiscal note" estimates on criminal penalty enhancements are nothing but convenient political fictions. They're designed not to tell budgeters how much "enhancement" bills cost but to let legislators look "tuff on crime" without having to account for their actions in the budget. Everybody at the capitol who's got a $250K program they'd like to fund should be pissed about all the sentence enhancements passed each year at the Lege, not to mention the fact that LBB lets them pass by without attaching a price tag. The fiscal note admits that "When an offense is changed from a misdemeanor to a felony, there is a transfer of the burden of confinement of convicted offenders from the counties to the State," but they just don't account for that financial "burden."

Even so, since virtually all legislators also have their own penalty-increase bills they want to pass, everybody winks and nods and pretends the emperor is really wearing clothes, then later we wonder how the corrections budget got so big that Gov. Perry and the House Appropriations Committee want it cut by $786 million.

UPDATE (3/9): I happened to be in the room when Rep. Menendez's bill was heard. It stems from an incident in San Antonio at in which a woman arrested for her third DWI first accused five officers who'd arrested her of raping her then rather quickly recanted the story, which the officers said wasn't credible anyway for a variety of reasons. Still, the department felt compelled to investigate for many hours after her recantation, taking swabs from the officers and the woman who "outcried," etc., and the officers felt the allegations will "stick with" them, for reasons I don't fully understand, even though they were fully exonerated and the records closed. The woman was charged with a Class B misdemeanor.

The whole discussion was quite odd - basically police officers complaining that, following sexual-assault allegations, they're subjected to the same investigative techniques applied to everyday suspects, only when it happens to cops it creates "irreparable harm." It's getting more publicity because they're pushing this bill than it ever would or could have of its own accord: For whatever reason, they're the ones calling attention to an incident that the public would never know about, and which would already be a closed record under the state civil service code, which covers SAPD. They're complaining that a notation may be made in their closed, internal affairs file that an accusation was made and deemed unfounded, but the public would never know any of this if they hadn't come forward talking about it under their own names. Rep. Wayne Christian was particularly concerned how this information would not remain confidential, but his confusion stemmed from the fact that the incident did not and under normal circumstances probably would never become public - he was only hearing about it because the officers are trying to make it a big deal.

Rep. Stefani Carter observed that, according to the Criminal Justice Impact Statement for the bill, "In fiscal year 2010, approximately 629 people were arrested and 230 of those arrested in fiscal year 2010 were placed on misdemeanor community supervision for the offense of false report to peace officer or law enforcement employee." So in 63% of cases prosecutors dropped charges. Chairman Pete Gallego pointed out that boosting the punishment to a felony wouldn't solve the problem if prosecutors didn't pursue most cases anyway. Or, perhaps police are arresting for this offense more often than is really warranted. Either way, this is another solution looking for a problem, a symbolic enhancement proposed more because of a lack of imagination than because it would improve the system. Even so, no one spoke in opposition.