Saturday, March 23, 2019

Modifying 3-strikes theft enhancement would ↓ TX state-jail population

On Monday, the Texas House Criminal Jurisprudence Committee will hear a good little decarceration bill modifying the enhancement for misdemeanor three-strikes theft. This one should have been changed long ago.

Under current Texas law, if at any time in your life you commit three incidents of misdemeanor theft, regardless of the value of the property, prosecutors can charge it as a state-jail felony. Even if the third "strike" is stealing candy from the grocery-store check-out line, prosecutors can seek a felony conviction and sentence.

HB 1240 by Rep. Yvonne Davis would revise this statute in two important ways: First, it would require that the lower-level thefts be within five years of one another to count toward a penalty enhancement. Piecing together a new, theft with two others that are decades old will no longer be allowed.

Second, the penalty increase stemming from a third "strike" would only bump the charge up by one category. So if the third strike were a Class A misdemeanor ($750 to $2,499.99), it would make no difference. But if it were a Class C or B misdemeanor, the penalty would still be a misdemeanor.

This change will further reduce the number of inmates entering Texas state jails, which notoriously have the highest recidivism rates of any facilities in the system.

Just Liberty reviewed Texas Department of Criminal Justice datasets and discovered that three-strikes theft accounted for almost 2,400 state-jail admissions in the 2018 fiscal year. This is the second most common reason for a state-jail sentence after possession of a controlled substance.

A few of those folks would have still gone to state jail under HB 1240. But because most theft involves low-value items, many more people would have been charged with misdemeanors instead of felonies. Grits wouldn't be surprised if HB 1240 all but eliminated three-strike theft offenders in Texas state jails.

Hard to argue with this one: Reduces incarceration in state jails where recidivism is high, reduces public perceptions of unfairness, but still sends a message that repeat theft won't be tolerated. Grits is delighted Rep. Davis proposed the bill and pleased that Chairwoman Nicole Collier is taking it up on the early side this session. HB 1240 deserves strong, bipartisan support from criminal-justice reformers.


Gadfly said...

The years of chaining is a big deal. Three strike laws should only apply to habitual offenders. Especially on lower-level theft, more than 5 years is not habitual.

Anonymous said...

Why not take enhancements entirely out of the hands of prosecutors and make it 100% discretionary for judges. Then please deals could only be for the current charge, and enhancements pronounced by judges could be appealed. Prosecutors who want to see enhancements could simply not offer pleas and take serious offenders to trial (where they belong) and the scrutiny of a trial will make prosecutors actually have to show up for work once in a while.

Judges who sentence too many or too few enhancements could be voted out.

How about that, checks and balances!

Anonymous said...

Those lawyers who actually practice law in a courtroom already know that prosecutors in many jurisdictions rarely invoke the enhancement unless the offender is such a chronic offender that looking the other way only emboldens them more to take the risk. Committing theft is often a risk analysis of whether the time you may serve is worth the risk of stealing. A stint in state jail may alter the analysis. Of course, there are some exceptions pertaining to the thinking of the severely drug addicted and/or mentally ill, but those are often taken in consideration by prosecutors and defense attorneys which can result in waiving enhancements.

As for the 5 year magical number, there is no evidence that a person is less of a thief after 5 years than before, especially if he just never got caught or spent part or all of that time in custody. Prosecutors should have that discretion.

Kill the bill.

Anonymous said...

Maybe brush up on your 6th Amendment buddy, if they haven't been caught, haven't been charged, and therefore have no witnesses or accusers, then there was no crime in the eyes of the law.

DLW said...

A common problem with prosecutors, mostly but not always young ones, is that they see legislation ALLOWING them to do something as the same as legislation REQUIRING them to do something.

drewwilley said...

We see sooo many of these with our clients at Restoring Justice - and what's worse is that once they have a SJF theft, prior felonies can be used to enhance to a 2nd degree, so the decarceration potential is FAR broader than estimated in this post. Once someone is facing 20 years, their court-appointed attorney with 400 other felonies that year tells them there is no hope. We've had clients facing 20 years for stealing food, one for stealing baby bottles and clothes - and all with enhancements 10-20 years prior. No chance for redemption there. Once they are given attention, though, we can remedy that, but the system doesn't protect against this injustice on its own - sounds like this bill would go a long way to fixing that. Decrease not only State jail populations, but TDCJ population, too.

George said...

The entire criminal justice system here in Texas, and throughout the nation, has grown to be dependent upon the criminalization of our fellow citizens. As long as you have private corporations ( think private prisons and the corporations who supply both state jails/prisons with vital goods such as food etc. ) -- and their shareholders -- reaping profits from incarcerating individuals, the "show" will continue.

Once upon a time there wasn't as an apparent charade when it came to meting out "justice" to lawbreakers. You did a crime, you did your time. Most legal proceedings went to trial and if convicted you served your time in a state prison that, for the most part, was self-sufficient. They weren't called "prison farms" for nothing. While some items are still produced within the Texas Department of Criminal Justice's Institutional Division, the old Texas Department of Corrections produced their own clothing from cotton grown in the fields, made their own soap, had a cannery at the Central Unit in Sugarland, and pretty much anything else that was needed to house and feed the inmates ( now labeled offenders ).

Now most people charged with a crime take a plea deal and often sit many months in a county jail for the process to ensue. This is another opportunity for the private companies who supply the jails with vital goods to make profits off of the misfortune of others and take from the taxpayers. The entire process has gotten completely out of hand. With police unions holding cities hostage concerning pay/benefits citing public safety concerns. (Do we really need the number of police that we currently have?)

I think it's time we looked at this with much clearer vision that what has been in the fairly recent past. There's WAY too much money being thrown at this issue with no measurable success as a result. said...

I second that motion.