Legislative Rush to Punish “Sex” Offenders Removes Punishment Alternatives, Probation, Unnecessarily Increases Prison Overcrowding
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In 2008 we posted a piece about the restrictions the Texas Legislature had placed on the availability of probation. Historically probation was an alternative to penal incarceration designed to give first offenders and minor offenders a second chance.
As the American society entered the industrial revolution of the 18th and 19th centuries, which forced more people to “leave the farms” and relocate into tightly congested urban areas where the manufacturing jobs were, crime increased exponentially, as did the rate of penal incarceration. Probation gradually evolved from the humanitarian efforts of states like Massachusetts to “save the souls” of miscreants with a second chance at life to a necessary sentencing tool needed to divert increasingly more serious offenders away from overcrowded state penal systems. Prosecutors also found probation to be an effective leverage against criminal defendants to get them to enter into “plea bargains” and thereby avoid the costly trial by jury process.
But as violent crime increased probation and its first cousin, parole, became the “whipping boy” for a developing “law and order” movement—a movement whose roots can be traced back to the racial segregation of the Old South. According to the 1935 FBI Uniform Crime Reports, the Southern states had a murder rate of 21.9 per 100,000 people—a rate that was nearly six times the national average. In his book The Mind of the South (Vantage Books 1941), W.J. Cash wrote: “The Negro in the slums was the main, though by no means the whole, explanation for this appalling showing. Police reports and maps for cities like Atlanta and Charlotte (the two which had the highest murder-rate for the South) reveal plainly that the murder line follows the location of black slums with great exactness, that most of the criminal and the majority of their victims are found there, and that the greatest incidence of the crime occurs in exactly the slums where unemployment, crowding, squalor, and want are most prevalent.”
By the 1970s, when the “crime victim rights movement” was established in California, violent crime had migrated from the slums of the South to the larger urban areas across the rest of the country. The militancy of the late 1960s spawned Richard Nixon’s presidential “war on crime” declaration as many Americans had increasingly grown disenchanted with Lyndon Johnson’s liberal social programs known as the president’s “Great Society.” “States rights” racists politicians of the Old South, led by Alabama Gov. George Wallace, found allegiances with Northern politicians who were seeing one “big city” after another going up in the flames of “race riots.” Demands for “law-and-order” became a political right of passage.
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