Monday, March 19, 2007

Sentencing Tuesday in Criminal Jurisprudence, Part Two

Time to finish up Grits' pre-hearing examination of bills being heard in Tuesday's Texas House Criminal Jurisprudence Committee. (See Part One.) The bills up in the second half of Tuesday's agenda perhaps aren't as sexy as those discussed earlier, but several still deserve attention:

Close loophole avoiding treatment diversion
HB 1610 by Madden is a small, but needed bill that affects sentencing for first-time drug offenders convicted of a small quantity possession offense, diverting them to community supervision with drug treatment. The bill plugs a loophole I've written about previously that allows local judges to sentence offenders to county jail time as a condition of probation. In Harris County, in particular, this accounts for most local jail overcrowding.

Right now state law allows judges to impose the sentence for a Class A misdemeanor instead of a state jail felony in the interest of justice. However, some judges and prosecutors, particularly in Harris County, have abused this provision. After HB 2668 passed in 2003 requiring judges to place offenders on community supervision on the first offense, a few judges began sentencing offenders under the provision changed by this bill to serve county jail time instead of being placed on felony probation. This bill requires the judge to order community supervision on the first offense, closing the loophole.

Nuther sex offender enhancement: Feel safe yet?
In contradistinction to the mostly good bills on Tuesday's agenda, Patrick Rose has a sex offender enhancement up (HB 1597) that would expand the category of offenders who receive mandatory life sentences. Uh ... "This is Reality calling Rep. Rose - come in, please." How many times must it be repeated? The prisons are full and until that problem is solved it's irresponsible to keep mindlessly boosting criminal penalties in response to every outburst of politicized fearmongering. I would have hoped Mr. Rose (who is a former campaign client of mine) would have already gotten his anti-sex offender vote in for the session with HB 8 - it would be a ridiculous waste of both the House's time and valuable prison space for this committee to pass HB 1597, too.

Divert Class B Misdemeanor Defendants From Jail
I called Rep. Juan Escobar's office to try to better understand his HB 1939 - the right staffer wasn't there when I called and I didn't get a call back on Friday. But this bill takes a good idea - diverting Class B misdemeanors from the jail system, and potentially muddies it in ways that I frankly don't 100% understand. Given that, I'd normally make an extra effort to figure out and critique it, but I heard from a different source that the bill author is making a few minor changes that may address my concerns, so let's just see what the substitute looks like. In particular, many counties' community justice councils are barely active and I'm not sure that's the best entity to develop rulemaking envisioned in the bill. Giving it to the district judges perhaps makes more sense.

My source speculated that the changing bill language might be why I hadn't heard back from the staffer - things may just still be in flux. There are a couple of other good bills assigned to this committee that I'll discuss soon that would allow police officers to "cite and summons" instead of arrest for low-level misdemeanors. HB 1939 aims to similarly handle Class B defendants through alternative systems without booking them into the jail. When I figure out more about it I'll let you know.

Expanding access to probation
While distinctions must be made between violent and non-violent offenders, not all violent offenders were created equal, and too often the law doesn't give authorities enough leeway to balance every competing interest and circumstance. HB 1513 by Haggerty would give judges authority to order community supervision for certain violent (so-called '3-g') offenses, basically removing mandatory minimum incarceration stints in favor of giving discretion to jurists.


Anonymous said...


I searched and searched through prior posts but ultimately didn't find exactly what I was looking for. I know you must be terribly busy with leg stuff, but answer this if you have a sec. What would possess a prosecutor or judge to send some low level offender to the Harris County Jail when the intent of the law is to do otherwise. Presumably, they scoured the law looking for that loophole they've been exploiting? I mean, what's the psychology there? Are they so frustrated with their inability to get the big offenders that pounding the little offenders with unnecessary jail time gives them some sort of strange satisfaction? Or, do you think they've become jaded and, in their hearts, given up on the concept of rehabilitation? Because, presumably, prosecutors and judges are paying taxes, too. I guess that I think they have become jaded by dealing with crime day in and day out. As a taxpayer, I'd truly, truly, truly rather see finite jail space reserved for the Ted Bundy types. Small time pot users are usually sleepy and unmotivated. Let them stay at home in their bedrooms with little ankle monitors, you know?

Gritsforbreakfast said...

I'd say this is the closest to the truth: "they've become jaded and, in their hearts, given up on the concept of rehabilitation"

Basically they disagreed with the change in the law and used every loophole at their disposal to avoid implementing it, substituting their judgment for the Legislature's similar to what some DAs did on handguns in cars. best,

Anonymous said...

Where is the funding for misdemeanor treatment? West of I-35, it doesn't exist. Rural probation for drug offenders involves minimal counseling or treatment because it isn't out here. If the lege isn't willing to fund it, the county jail is the only treatment facility available to judges. After all, supposedly the drugs aren't available there.

Anonymous said...

There are some very good, fair judges in Texas; then there are those who are strickly there to see how mean they can be and think this makes them look big in what was once considered a man's job.

One Judge came into court and made the statement,"I feel like sending someone to jail today, who is first!" Now tell me how fair this Judge is going to be? Not at all. Her only concern is to be a big dog in what used to be considered a man's job.

She nearly lost the election this time and with any luck maybe she will not win the next time. Texas does not need to be represented by Judges who are strickly out for themselves and don't care about the person whose life is in her hands. In some courts the person is considered guilty before the trial begins and the Judge and DA's office get together to make the decision before the trial starts. The DA's office also needs a thourough cleaning and hopefully this will soon happen.

Anonymous said...

Tell you what, Scott, either judges and prosecutors are "jaded" and don't believe in rehabilitation and are therefore sending people to jail who otherwise wouldn't be there (so the legislature wills, apparently) or the judges and prosecutors own stock in prison building companies!

Anonymous said...

Sorry, guys - a lot of us believe in rehab, but - it doesn't exist in rural Texas! You all must be from the metro areas; we don't have boot camps, don't have CRTCs - all we have are the jails....

Anonymous said...

How about monitoring with ankle devices, probation, and AA meetings until they can recite the twelve steps in their sleep?

Anonymous said...

Have you priced ankle bracelets lately? Easily 2/3 of my misdemeanors are unemployed or are trying to support families on yard work or fast food. Since they don't have DLs, if they drive to work, they're toast.

We use AA; however, our group does not like to sign the court sheet, as that means a person at the meeting loses anonymity.

I know - I sound like a whiner. I'm not. I do the best I can to "see justice done" in my community, often working with defendants without counsel and trying to be fair. Ignition interlock kills them - the closest place to get one is over 100 miles round trip, and their cars won't get there - if they ahve the money for the gas.

There are a lot of us out here trying to work with people charged with crimes in the spirit of HB 1075; many of us have judges who also care. However, we are required to work with what the Lege passes. Sure, there are bad prosecutors, bad defense attorneys, bad anything you wish to name - but - don't tar all of us with the same brush.

In the same vein, when drafting answers for metropolitan areas, remember the low population, low income third of the state that happens to be west of I-35!