For the most part, criminal law is based on a theory of negative incentives - do "X" and the state will punish you. Seldom do legislators think to install positive incentives, which makes me particularly glad to see that Texas state Rep. Oscar Longoria has filed HB 1790, which would allow state jail felons who successfully complete probation to have
their convictions reduced to a class A misdemeanor.
The bill, which excludes assaults and other "crimes against persons" (Title V of the Penal Code) will help
alleviate state jail populations, reduce prisoner healthcare costs and encourage state jail
defendants to take probation terms seriously, including restitution for
victims. The best part: It would also allow defendants the real
opportunity to live out their lives without a felony on their record.
State jail felons have the highest revocation
rates among inmates released from TDCJ, with defendants frequently choosing day for day time over
treatment and other assessed needs placements. This bill
provides defendants with the motivation to successfully complete the
requirements of their probation, both saving money and improving public safety. Excellent bill.
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11 comments:
Pretty sure HB 1790's change would be an unconstitutional grant of judicial clemency. Absent a legal flaw (fixable on appeal), only the executive branch can change a sentence after conviction (via clemency). That's why PC Sec. 12.44 permits it before a conviction, not after.
Sounds like another Bill might need to be passed to make that okay to do, what you say, who will write the other BILL needed?
HB 1790 Calls for the defendant to petition the court for the reduction in conviction 70 days prior to the completion of probation, as long as all terms have been sucessfully met. My understanding is that as long as the court still has jurisdiction and the defendant is still on probation the court can pretty much do what they want to. No other bill is necessary, nor is it a unconstitutional grant of clemency.
Except in liberal districts, this and similar "incentivizing bills" is pissing in the wind. Sounds good, and allows authors to go have drinks ponder all the good they have done.
REALITY - Except in far left democratic electorate, DA's do not support this kind of stuff. AND few judges will take the risk of cutting out DA input on early release/sentence shortening of any kind.
First stop on any type of bill like this to be the prosecutors' association. If it doesn't get support drop the damn bill on the spot.
Used to people had their own motivation to succeed. Now they have to be controlled, like puppets, by somebody else who "offers strong positive incentives" to get them moving. That used to be the responsibility of the parents.
My understanding is that as long as the court still has jurisdiction and the defendant is still on probation the court can pretty much do what they want to.
Regarding the terms of supervision or other punishment details, yes. But this is not merely a change in the terms of punishment--this is the undoing of a valid, completed conviction (and then a re-conviction for a lesser charge.) That is clemency, and only the executive branch can do that.
"...the court can pretty much do what they want to."
True. However the reality is that
"Court" encompasses the will of prosecutors. In most jurisdictions early release or shortened sentence means a shortened career or an early release from being an elected judge in tough on crime jurisdictions. Which by the way is most of Texas.
Prior legislation regarding "early release eligibility" has been bastardized by Prosecutors who loud themselves to be the end all on crime.
It would be more prudent to pursue legislation to de-incentivize prosecutors from seeking excessive and expensive sentencing options for non-violent crimes.
Shannon/married, I have no idea who's right on this question but I will say usually when there's a constitutional problem like that the Legislative Council raises a flag during the bill drafting process. It's hard to understand, if the bill is unconstitutional, how it made it out the door from Lege Council.
If Shannon's interpretation is correct, then PAPA is right and they need to file a constitutional amendment along with it.
9:52, people do have their own motivivations to succeed, but the system as constituted too often impedes success to the point where the juice is no longer worth the squeeze, which is why people refuse probation and just do their day for day time in state jails. The state is the one creating incentives, they're just universally negative ones. Sometimes carrots work better than sticks.
Get serious - I agree that the bill seems liberal, but stop looking at the effect it has on the defendant and look at the potential positive to the state. Offenders choosing probation over prison means less prison costs and less prison health care. Offenders seeing some light at the end of a tunnel during plea discussion means quicker pleas which, in turn, means less time in county jails and less jail overcrowding on a county level.
As for the D.A.s not liking it, they had no issue with it. The prosecutor does not lose the felony conviction and they saw it as a potential to stop seeing the same individual over and over again. You will always have the 'Hang -em- High' attitudes from some individuals.
The fact that the system is currently broken cannot be disputed.
As for people having their own motivation to succeed, I agree with that as well. Unfortunately I do not see many people walking through my doors whistling that tune. Most of them are worried about making their rent payment, electricity or court cost and fines while working at one of the employers that will hire felons.
Actually, Art. 42.12 Sec. 20 allows the Court to set aside any finding of guilt it has made as long as the terms and conditions of supervision have been satisfactorily met. This sounds like a great idea.
I like the spirit of positive reinforcement, but I don't think the state has the power to change a crime after a conviction.
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