John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers for the People - 2008 HTexas
Comments on Criminal Issues
December 5, 2007
TEXAS STIFFENS PUNISHMENT FOR SEX OFFENDERS
Houston Criminal Defense Attorney John T. Floyd Discusses Lynch Mob Mentality of 2007 Texas Legislature Handling of Sex Offenders
The 2007 Texas Legislature enacted a number of measures that severely increased the punishment for sex offenders. One of those measures makes second convictions for first-degree "sexually violent offenses" involving victims 14 years of age or younger a capital crime punishable by death or life without parole. A "sexually violent offense" is indecency with a child involving contact, sexual assault, aggravated sexual assault, sexual performance by a child, aggravated kidnapping involving intent to violate or abuse sexually, and first-degree burglary committed with intent to commit one of the sex offenses in this list.
Previously only certain types of murder qualified an offender for the death penalty in Texas. This capital murder statute listed nine circumstances or types of victims that qualified murder as capital murder. One of those was murder committed during the commission of an aggravated sexual assault. A life sentence was the maximum penalty for anyone convicted of committing an aggravated sexual assault of a child 14 years or young without the victim being killed. A person must serve 35 years on a life sentence in Texas without consideration for time off for good behavior.
Furthermore, some repeat sex offenders faced additional sanctions under the Texas Civil Commitment of Sexually Violent Predators Act (TCCSVPA) after being released from a state prison or mental health facility. This Act allows for “sexually violent offenders,” who suffer from a behavioral abnormality that makes them likely to engage in sexual violence, to be committed through the courts to outpatient treatment and supervision. While in this outpatient and supervision programs, these offenders are subject to intensive sex offender treatment, GPS tracking, housing and transportation restrictions, excluded from child safety zones, mandated to undergo polygraph examinations, substance use testing, registration every 30 days, and strict case management. A failure to comply with a civil commitment order imposing these requirements is a third-degree felony. Through March 2007, there were 69 sexually violent offenders who had been placed in the TCCSVPA program – 27 of them still under intense monitoring and receiving treatment in the community.
The 2007 Legislature now requires that the tracking service used to monitor TCCSVPA sexually violent offenders track the offenders in real time, providing real-time reports of the offenders' locations, and submitting cumulative reports of the offenders' locations. This new legislation applies to anyone serving a sentence in the Texas Department of Criminal Justice on September 1, 2007 or to anyone currently committed to the TCCSVPA program for any offense committed before, on, or after that date.
The 2007 Legislature also increased the penalty for other offenses involving victims 14 years of age or younger. The penalties were increased for indecency with a child involving contact and for sexual performance by a child if the victim was younger than 14 years of age from a second-degree felony [two to 20 years in prison and optional fine up to $10,000] and/or from a third-degree felony (two to 10 years in prison and an optional fine up to $10,000) to a first-degree felony punishable by life in prison or a sentence of five to 99 years and an optional fine up to $10,000.
The 2007 Legislature enacted legislation that prohibits a defendant convicted of aggravated kidnapping of a victim 14 years of age or younger from raising during the punishment phase of his trial the issue of whether he released his victim in a safe place qualifying him for a lower punishment. The effect of this legislation means that anyone convicted of aggravated kidnapping of a victim 14 years of age or younger, whether or not there was intent to abuse the victim sexually, will be punished for a first-degree felony.
The 2007 Legislature also removed parole eligibility for certain repeat sexually violent offenders whose victims were 14 years of age or younger. Offenders receiving mandatory life sentences for convictions involving indecency with a child, sexual assault, aggravated sexual assault, aggravated kidnapping involving intent to violate or abuse sexually, first-degree burglary with the intent to commit certain sex crimes, or sexual performance by a child are ineligible for parole provided they have a prior conviction for one of these crimes or a prior conviction for possession or promotion of child pornography, obscenity involving materials and activities by children, or prohibited sexual conduct (incest).
The 2007 Legislature also increased the statute of limitation for the prosecution of “sexually violent offenses” committed against victims younger than 17 years of age from ten to 20 years from the 18th birthday of the victim. The statute of limitation for indecency with a child by exposure remains at 10 years from the victim’s 18th birthday.
Lawmakers responsible for this “tough” legislation argue that it protects society from the horrific crimes committed by sex offenders. They say that increasing sexual abuse and assaults against children is so terrible that the death penalty is the only appropriate and just punishment for some of these repeat offenders. They contend that Texas should take the lead inflicting the most severe penalty on “sexually violent offenders” who repeatedly commit sex crimes against children – death for some and mandatory life sentences for the rest.
These lawmakers also point to what they call “safeguards” in the death penalty process. They contend prosecutors would review the death penalty eligible cases carefully before deciding whether to seek that penalty, and would reserve that penalty for only the worst cases. Historically, they argue, only 10 to 20 percent of the death penalty eligible cases are tried as death penalty cases. A further protection, they say, is that juries would carefully consider the facts of each case and impose the death penalty only in the most appropriate cases. And, as in all death penalty cases, the jury would be required to answer questions about a defendant’s future dangerousness and consider all the mitigating circumstances about him before imposing the death penalty.
Proponents of the death penalty for violent sex crimes against children dismiss concerns by legal scholars that these capital measures will be declared unconstitutional by the U.S. Supreme Court. These proponents point to other states – South Carolina, Montana, Louisiana, Oklahoma, and Florida – who have adopted similar legislation. In fact, they point to the Louisiana Supreme Court decision this past May which upheld that state’s death penalty statute that was applied to a step-father who raped his eight-year old step-daughter.
The Louisiana case will work its way to the U.S. Supreme Court where that state has not enjoyed much success defending the death penalty in sex crimes. In 1976 the Supreme Court struck down Louisiana’s aggravated rape statute, saying that the death penalty for aggravated rape violated the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishment. The following year the Supreme Court in a Georgia case once again made it clear that the death penalty for rape of an adult female violated the Eighth Amendment.
Proponents of the death penalty for violent sex crimes against children try to distinguish the penalty for these crimes from the death penalty struck down in adult rape cases. While the Supreme Court indeed used explicit language that the death penalty could not be imposed in a case involving an adult rape victim, it does not automatically follow that age of the victim will be the constitutional benchmark for deciding the death-for-rape issue. The proponents counter by pointing to the recent political conservative makeup of the high court as well as the research concerning the harm caused by child sexual abuse and the recidivism rate of child molesters as compelling evidence to support their belief that the death penalty in child-rape cases will be upheld.
The political, and legal, logic of these proponents who overwhelmingly influenced the 2007 Texas Legislature simply does not square with the facts. Child sexual abuse has been significantly declining since 1990. The National Child Abuse and Neglect Data System of the University of New Hampshire (NCANDS) reported a 40 percent decline of such cases between 1991 and 1999 with Texas being one of the 41 states reporting a decline. The U.S. Justice Department put the decline rate even higher at 56 percent during that same period. The NCANDS and Justice Department data is supported by the FBI’s Uniform Crime Reports and the prestigious National Crime Victimization Survey (NCVS) which reported a 67 percent decrease in sexual assaults of teenagers between 1998 and 2004.
David Finkelhor and Lisa M. Jones, writing in the U.S. Justice Department’s “Juvenile Justice Bulletin, said the decrease in child sexual abuse in the 1990s represented a decline from an actual 150,000 cases to 89,500 cases nationwide. The U.S. Department of Health and Human Services reported the decrease continued through 2002 with 88,656 cases reported, and NCANDS reported a continuing decline in 2003 with 78,188 cases. USA Today this year reported similar decreases through 2006.
This trend toward declining sexual abuse of children was preceded by a 15-year period of annual increases in child sexual abuse cases. This prompts the natural question: why didn’t the Texas Legislature enact the death penalty for repeat sexually violent offenders during the 15-year period [1975-1990] when child sexual abuse increased each year rather than wait until there had been a 16-year decline?
And what about the other reason offered by proponents of the “get tough” on sex offenders legislation: the high recidivism rate attributed to sex offenders?
The National Geographic Channel reported in a recent documentary entitled “Prison Nation” that 60 percent of all prison inmates released nationwide will recidivate within three years. The U.S. Justice Department’s Bureau of Justice Statistics puts the nation’s recidivism rate lower at 43 percent with less than 15 percent of those being for sex offenses.
Several years ago Texas had 9,000 sex offenders who had committed crimes against children in its prison system. The vast majority of those offenders will be, or have been, released because they secured favorable plea bargains from prosecutors. The primary reason for repeat sex offenses is not, nor has it ever been, the perverted nature of the offender, but the willingness of prosecutors to plea bargain with these offenders. Why? Because half of all the offenders who sexually abuse children are parents (with almost all of them being fathers), according to the U.S. Department of Health and Human Services. Prosecutors do not like sending “dads” to prison – not even those who sexually abuse their children.
The percentage of these 9000 offenders who will commit new sex offenses can be directly linked to the lack of meaningful treatment they will receive in the Texas Department of Criminal Justice. This column has previously reported the correlation between treatment programs and reduced recidivism rates for sex offenders. For example, the State of Washington leads the nation with penal sex offender treatment programs and they offer impressive data to support those programs: 2.7% of the sex offenders who did not receive treatment and released from prison were convicted of a sexual felony within six years while only 1.8% of those who received treatment were convicted of a sexual felony within six years. The figure is even less for those offenders who wanted treatment but couldn’t get it – 0.t6%. Prisons in the United States, Canada and other Western countries who offer serious state-of-the-art sex offender treatment programs report that only 9.9% of sex offenders who participate in these programs re-offend with new sex crimes while 17.4% of those who do not receive treatment re-offend with new sex crimes
“There’s pretty good evidence that if you pick out the right kind of people, who feel badly about what they’ve done, you can alter those patterns,” said Roxanne Lieb, director of the Washington State Institute for Public Policy.
The problem is that too many states, like Texas, are not willing to invest money into legitimate, proven treatment programs for sex offenders. These states want to either lock them up and throw away the key or kill them.
“The reality is this: Nothing beats intelligence,” said Robert Packard, a clinical forensic psychologist and past president of the Washington Association for the Treatment of Sexual Abusers. “We spend no money on trying to understand how to do better – how to evaluate and treat offenders better.”
The economic math of this issue begs scrutiny. Let’s assume that all 9000 of the Texas sex offenders cited above are released. 15 percent of those offenders will commit new sex offenses, or 1350 offenses, based on Justice Department statistics. Let’s assume that all of them qualify for the death penalty (although that is unrealistic). State prosecutors will then select 10 to 20 percent of the death penalty eligible cases for prosecution. Using the minimum 10 percent selection rate, 135 will be prosecuted for the death penalty. Let’s assume that juries will return the death penalty in 70 of those cases.
Those 70 cases, from arrest to execution, will cost the State of Texas $2.3 million dollars each, according to the Dallas MORNING NEWS – or, $161 million for all of them. What would then be accomplished? Those 70 repeat sexually violent offenders would be put to death. They would never repeat their crimes again. But that same objective could be accomplished by putting them in prison for the rest of their lives in the highest security prison possible at a cost of approximately $54 million, according to the MORNING NEWS.
The remaining $100 million could be invested in reliable, cost-effective treatment programs for other sex offenders in state prisons reducing their likelihood of recidivism to roughly 2 percent. The current practice of devoting an inordinate amount of the state’s criminal justice resources to one class of offenders will only increase the likelihood that other offenders will recidivate, many for violent crimes. Substance abuse and general rehabilitation programs for non-sex offenders will suffer because the Texas Legislature, as exemplified by its 2007 session, is committed to a policy of political aggrandizement through appeasement of crime victims groups by diverting most of its criminal justice resources to the prosecution and putting to death less than one hundred “sexually violent offenders.”
If viable, productive treatment programs existed within the Texas Department of Criminal Justice, the legislature could dictate mandatory participation in these programs for first-time sex offenders. This would be the first significant step in making sure these sex offenders do not become repeat sexually violent offenders.
This was actually the legislative purpose of the TCCSVPA. The legislature in 1999 said that “a civil commitment procedure for the long-term supervision and treatment of sexually violent predators is necessary and in the interest of the state.”
The case of Bennie Gene Green illustrates how the TCCSVPA works. On September 17, 2001 a Harris County criminal district determined that Green was a “sexually violent predator.” The court ordered that Green be “committed for outpatient treatment and supervision” where he would remain under this commitment until his “behavioral abnormality” changed and he was no longer “likely to engage in a predatory act of sexual violence.” The court imposed a staggering total of 50 “commitment requirements” it felt “necessary to ensure that [Green] complies with the treatment and supervision to protect the community.” The following are nine mandatory statutory requirements:
•requiring the person to reside in a Texas residential facility under contract with the council or at another location or facility approved by the council;
•prohibiting the person's contact with a victim or potential victim of the person;
•prohibiting the person's possession or use of alcohol, inhalants, or a controlled substance;
•requiring the person's participation in and compliance with a specific course of treatment;
•requiring the person to:
submit to tracking under a particular type of tracking service and to any other appropriate supervision; and refrain from tampering with, altering, modifying, obstructing, or manipulating the tracking equipment;
•prohibiting the person from changing the person's residence without prior authorization from the judge and from leaving the state without that prior authorization;
•if determined appropriate by the judge, establishing a child safety zone in the same manner as a child safety zone is established by a judge under Section 13B, Article 42.12, Code of Criminal Procedure, and requiring the person to comply with requirements related to the safety zone;
•requiring the person to notify the case manager immediately but in any event within 24 hours of any change in the person's status that affects proper treatment and supervision, including a change in the person's physical health or job status and including any incarceration of the person; and
•any other requirements determined necessary by the judge.
One of the district court’s additional requirements provided that Green could not “purchase, borrow, subscribe to, create, or possess literature, magazines, books, pictures, videotapes, or CD-ROMs that depict pornography and/or obscene or sexually explicit images.”
The district court informed Green that he would “likely be charged” with a third-degree felony if he violated any of the commitment requirements.
The State, in a February 20, 2004 indictment, charged that Greene on February 19, 2004 violated the terms of his treatment plan by possessing child pornography. The State relied upon an “incident report” prepared by Green’s treatment team that said “pornographic images were found in [Green's] possession that he [had] collected for six weeks along with articles about men molesting children.” The report further stated that Green “admitted ... that he had fantasies regarding these images, one in which a sex offender had impregnated a ten-year-old girl.”
Based on these findings, the treatment team recommended that Green be arrested and terminated from treatment. The State agreed, filing its February 20 indictment. The district court subsequently imposed a 25 year sentence agreed upon by Green and the prosecution.
With many mandatory sentencing and charging requirements imposed by the Legislature, prosecutors and defense attorneys are forced to expend unnecessary criminal justice resources as these case work their way through the criminal trial process. Prosecutors are compelled to take a “heavy-handed” approach in charging sex offense cases while defense attorneys are virtually forced to advise their clients not to plea bargain but go to trial – even in first offense cases.
For example, an offender is charged with a first sex offense under some particularly mitigating circumstances. If he pleads out, even for a reduced sentence, just “get the matter behind him,” any future sex conviction would subject him to a possible death penalty, life without parole, or an enhanced determinate sentence. A defense attorney now must not only advise his sex offense client about the consequences of his immediate circumstances but possible future consequences a sex offense conviction will impose upon him.
The Texas Legislature has imposed greater punishments for sex offenses than those routinely imposed for acts of terrorism and subject sex offenders to greater restrictions on societal movement (mandatory registration, GPS tracking, forced polygraph examination, etc.) than it requires for any other offender.
The Polly Klaas and Jessica Lundford cases are unspeakable tragedies, but the truth of the matter is that the Baby Graces of this world are more often sexually abused and killed by their parents, or some other close relative or acquaintance (like a teacher or a preacher), than by a Richard Davis. Had the Galveston “Baby Grace” case not received so much national and international media coverage, it would have been just another two-paragraph newspaper story once the parents were arrested.
Politics and revenge do not make good criminal justice policies. These base human endeavors infect our criminal trial process with what can almost be described as a “lynch mob mentality.” As a consequence, justice and human decency are sacrificed at the altar.
SOURCES:
•Green v. State, 219 S.W.3d 84 (Tex.App.-Houston [1st] 2006)
•Beasley v. State, 95 S.W.3d 590 (Tex.App.-Beaumont 2002)
•State v. Kennedy, 957 So.2d 757, 2005-1981 (La.5/22/07)
•Selman v. Louisiana, 428 U.S. 906 (l976)
•Coker v. Georgia, 433 U.S. 584 (1977)
•V.T.C.A., Penal Code § 12.42 - Penalties for Repeat and Habitual Felony Offenders
•V.T.C.A., Penal Code § 19.03 – Capital Murder
•V.T.C.A., Penal Code § 21.02 Continuous Sexual Abuse of Young Child or Children
•V.T.C.A., Penal Code § 22.021 - Aggravated Sexual Assault
•Vernon’s Ann. Texas C.C.P. Art. 37.072 – Procedure in Repeat Sex Offender Capital Case
•Texas Health and Safety Code, §§ 841.001-147
•Texas Bill Analysis, 2007 Regular Session, House Bill 8,March 5, 2007, Texas House Research Organization, 80th Legislature, 2007 Regular Session
[ Back to top ]
