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.
Social liberals and prison reform advocates waged a good fight trying to stave off enhanced criminal sentencing, elimination of probation eligible offenses, and either the outright abolition of parole or a dramatic decrease of crimes eligible for parole consideration spawned out of the “war on crime” but with little success. In his book Conscience and Convenience (Little, Brown & Co. 1980), which was a revealing analysis of the nation’s criminal justice system of the preceding 80 years, Columbia University Professor David Rothman pointed that parole had always been the “most unpopular of all reform measures. Parole became the whipping boy for the failures of law enforcement agencies to control or reduce crime. Whenever fears of a ‘crime wave’ swept through the country, or whenever a particular senseless or tragic crime occurred, parole has invariably bore the brunt of attack.”
Seventy years after W.J. Cash’s “black slums” analysis and three decades after Rothman’s critique of the nation’s abysmal failure at fighting crime, the popular blog Grits for Breakfastposted a piece about a new book by Robert Perkinson titled Texas Tough: The Rise of America’s Prison Empire. The Grits post deals with his reaction to a lecture by Perkinson at the University of Texas: reactions that deserve repeating here.
“Perkinson’s book (or at least his talks about it – this is the second time I’ve heard him speak) focuses significantly on issues of race. He believes that we’re currently in the second ‘boom’ of incarcerating black felons, and that the first came after the end of Reconstruction when southern racists used criminal laws to impose and enforce Jim Crow. The southern model during that first boom involved ‘convict leasing,’ which meant hiring out convicts for their labor to private employers, though none of the money went to the prisoners. Convict leasing was Texas’ #1 source of revenue, he said, during the late 19th and early 20th centuries. At one point, Perkinson provocatively announced that ‘Prison labor helped build the New South just as slavery built the old.’ The prisoner death toll from convict leasing nationwide was about 30,000 – roughly six times the number of black folks lynched during the same period, he said.
“It’s rather ironic that convict leasing used to be Texas’ biggest revenue source because today mass incarceration has turned into a $3+billion per year money pit for the state. Perkinson noted that the Texas Legislature has increased penalties and created new crimes during every legislative session since the 1960s, ignoring the fact that ‘tough sentencing laws are appropriations,’ or ‘really entitlement programs,’ which is an interesting way to look at it. Indeed, prison building, he argued, has been the defining public works project of the last generation, the same way that hydroelectric dams were the defining public works program of the early 20th century and the highway system was during the period – an excellent and accurate observation.”
Perkinson’s nailed it – the prison industry cannot exist without a “war on crime” being perpetually waged by fear mongering “law-and-order” legislators. Violent crime in our society, especially those involving sex offenses, has been steadily decreasing while the state legislatures, like the one in Texas, have continuously increased penalties for crime and reduced probation/parole eligible offenses. Not counting jails, federal lockups and juvenile facilities, Texas has 114 prisons and nearly 750,000 residents under some form of criminal justice supervision. There are nearly 90,000 non-violent offenders incarcerated in this state alone who would be more suitable and less costly under some form of community supervision. And, yes, as Perkinson pointed out, race continues to play a significant factor in Texas’ incarceration policies: blacks are incarcerated 7 to 1 over whites. Black men are four times more likely to go to prison in Texas than to college.
Thus, Texas’ “war on crime,” whose war room lies in the rowdy domain of the Austin legislature, now has primarily a dual enemy: blacks (or Hispanics) and sex offenders. Recently we posted a piece about the legislature’s ongoing herculean effort to “out tough” every other state when it comes to dealing with sex offenders; and another piece about how the courts have greatly handcuffed criminal defense attorneys ability to defend these cases; and another piece about how the U.S. Supreme Court has given constitutional blessing to confining sex offenders for the rest of their lives on the theory that they might pose unnecessary risk to society; and yet another piece about how state officials are so horribly abusing its children without parents (mostly blacks) that they are producing a new crop of violent offenders every season.
Against this barren political and legal landscape, it is little wonder that probation under any circumstance has become an unrealistic prospect in the State of Texas. Article 42.12 of the Texas Code of Criminal Procedure governs criminal sentencing in this state. Sec. 2(2) of this article defines “community supervision” as “the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period…” There are two kinds of community supervised sentences: 1) a criminal proceeding which is deferred without an adjudication; and 2) an actual sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or part.
There are two ways community supervision can be ordered: either by the judge or recommended by the jury. Sec. 3(a) requires that before a judge can order community supervision he/she must make a determination that such a sentence is in “best interest of justice, the public, and the defendant” and it can be ordered only after the defendant has been convicted or entered a plea of not guilty or nolo contender. A defendant is not eligible for community supervision (1) if he/she has been sentenced to a term of imprisonment exceeding ten years or (2) sentenced to serve a term of confinement under a state jail felony pursuant to Article 12.35 of the Texas Penal Code.
The Texas Legislature has imposed certain limitations on a judge’s authority to order community supervision. These are known as the “3g limitations” under Sec. 3g. A judge may not order community supervision if the defendant has been convicted under any of the following offenses:
- Section 19.02, Penal Code (murder)
- Section 19.03, Penal Code (capital murder)
- Section 21.11(a)(1), Penal Code (indecency with a child)
- Section 20.04, Penal Code (aggravated kidnapping)
- Section 22.021, Penal Code (aggravated sexual assault)
- Section 29.03, Penal Code (aggravated robbery)
- Chapter 481, Health and Safety Code (drug laws), for which punishment is increased under (1) Section 481.140 [use of a child], or (2) Section 481.134(c), (d), (e), or (f) [drug free zone] if the defendant has been previously convicted of an offense for which punishment was increased under of those subsections
- Section 22.011, Penal Code (sexual assault)
- Section 22.04(a)(1), Penal Code (injury to a child, elderly individual, or disabled individual), if the offense is punishable as a felony of the first degree)
- Section 43.25, Penal Code (sexual performance by a child)
- Section 15.03, Penal Code, (Criminal Solicitation) if the offense is punishable as a felony of the first degree,
Or when it shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight there from, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or if there is an affirmative finding under Subsection (a)(2) in the trial of a felony of the second degree or higher that the deadly weapon was used or exhibited was a firearm and the defendant is granted community supervision, the court may order the defendant confined in the Texas Department of Criminal Justice for not less than 60 and not more than 120 days. At any time after the defendant has served 60 days in the custody of the department, the sentencing judge, on his own motion or on motion of the defendant, may order the defendant released to community supervision. The department shall release the defendant to community supervision after he has served 120 days.
A jury may not order community supervision if …”the defendant:
- is sentenced to a term of imprisonment that exceeds 10 years,
- is convicted of a state-jail felony for which suspension of the imposition of the sentence occurs automatically under CCP art. 42.12, §15(a) [low level drug offenses],
- does not file a sworn motion under CCP art. 42.12, §4(e) or for whom the jury does not enter in the verdict a finding that the information contained in the motion is true,
- is convicted of a drug offense for which punishment is increased under H&SC (c), (d), (e), or (f) [drug free zone] if the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections,
- is convicted of an offense of indecency with a child, aggravated sexual assault, or sexual assault, if the victim of the offense was younger than 14 years of age at the time the offense was committed,
- is convicted of an offense of aggravated kidnapping, if the victim was younger than 14 of age at the time of the offense was committed and the actor committed the offense with the intent to violate or abuse the victim sexually,
- is convicted of an offense of sexual performance of a child,
- is adjudged guilty of the offense of murder.” (O’Conner’s Texas Crimes and Consequences 2010-2011, T.B. Todd Dupont II)
Clearly, the Texas Legislature intended to greatly restrict probation eligibility to individuals charged with crimes against persons, especially sex offenses. But in its zeal to establish these restrictions, the legislature carved out some convoluted nuances in the authority of the judge and jury to impose probation in sex offense cases. Art 42.12, Sec. 3g(a)(1)(C), (E) and (H)—indecency with a child, aggravated sexual assault, and sexual assault—prohibit a judge from imposing probation in these cases.
Article 22.011, Texas Penal Code, defines a “child” as someone under seventeen years of age.
Thus, the clear language of the sexual assault and indecency with a child statutes applies to a defendant charged with sexual misconduct with a child under 17 years of age as defined in Art. 22.011. The judge cannot impose probation in these cases. On the other hand, a defendant can be charged with aggravated sexual assault of a child only if the is under 14 years of age. Thus, the language of the aggravated sexual assault statute does not prohibit probation if the “child” victim 14, 15 or 16 years of age.
As for the jury’s authority to recommend probation, a defendant is ineligible for probation if the child is under 14 years of age in all three child sexual assault offenses. Art 42.12, Sec. 4(d) (5)specifically prohibits a jury from recommending probation in sexual assault. indecency with a child and aggravated sexual assault cases “if the victim of the offense was younger than 14 years of age at the time the offense was committed.” The clear language of this section of Art. 42.12does not prohibit probation for these three offenses if the child victims are 14, 15 & 16 years of age.
This certainly creates legal paradoxes in child sexual assault cases. Under Arts. 21.11(a) (1)and Art. 22.011 of the Penal Code, indecency with a child and sexual assault specifically entails any sexual misconduct with a child under 17 years of age. Subsection 3g(a)(1)(C) of the Code Criminal Procedure prohibits a judge from imposing probation for these two sex offenses if the victim is under 17 years of age while subsection 4(d)(5) prohibits a jury from imposing probation in these cases only if the child is under 14 years of age.
Thus, a judge cannot impose probation in certain cases while the jury can. And in those cases where the jury can and the judge cannot, the judge must accept the jury’s recommendation because Sec. 4(a) demands that “a judge shall suspend the imposition of the sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.”
These legal paradoxes, of course, cause a criminal defense attorney representing defendants in these cases to pause. He must request that the jury assess punishment in some sex cases involving children because probation an available possible punishment for a jury, particularly in sexual assault, indecency with a child, and aggravated sexual assault cases if the victim is 14 years of age or older.
But even more daunting is whether a criminal defense attorney and his client would like to see probation imposed as an alternative to incarceration because of the “conditions” attached to probation. The following are considered “basic conditions” under Sec. 11 of Art. 42.12:
- Commit no offense against the law of this state or any other state or of the United States;
- Avoid injurious or vicious habits;
- Avoid persons or places of disreputable or harmful character, including any person, other than a family member of the defendant, who is an active member of a criminal street gang;
- Report to the supervision officer as directed by the judge or supervision officer and obey all rules and regulations of the community supervision and corrections department;
- Permit the supervision officer to visit the defendant at the defendant’s home or elsewhere;
- Work faithfully at suitable employment as far as possible;
- Remain within a specified place;
- Pay the defendant’s fine, if one is assessed, and all court costs whether a fine is assessed or not, in one or several sums;
- Support the defendant’s dependents;
- Participate, for a time specified by the judge, in any community-based program, including a community-service work program;
- Reimburse the county in which the prosecution was instituted for compensation paid to appointed counsel for defending the defendant in the case, if counsel was appointed, or if the defendant was represented by a county-paid public defender, in an amount that would have been paid to an appointed attorney had the county not had a public defender;
- Remain under custodial supervision in a community corrections facility, obey all rules and regulations of the facility, and pay a percentage of the defendant’s income to the facility for room and board;
- Pay a percentage of the defendant’s income to the defendant’s dependents for their support while under custodial supervision in a community corrections facility;
- Submit to testing for alcohol and controlled substances;
- Attend counseling sessions for substance abusers or participate in substance abuse services in a program or facility approved or licensed by the Texas Commission on Alcohol and Drug Abuse;
- With the consent of the victim of a misdemeanor offense or of any offense under Title 7, Penal Code, participate in victim-defendant mediation;
- Submit to electronic monitoring;
- Reimburse the compensation to victims of crime fund for any amounts paid from that fund to or on behalf of a victim, as defined by Article 56.32, of the defendant’s offense or if no reimbursement is required, make one payment to the compensation to victims of crime fund in an amount not to exceed $50 if the offense is a misdemeanor or not to exceed $100 if the offense is a felony;
- Reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense;
- Pay all or part of the reasonable and necessary costs incurred by the victim for psychological counseling made necessary by the offense or for counseling and education relating to acquired immune deficiency syndrome or human immunodeficiency virus made necessary by the offense;
- Make one payment in the amount not to exceed $50 to a crime stoppers organization as defined by Section 414.001, Government Code, and as certified by the Texas Crime Stoppers Council;
- Submit a DNA sample to the Department of Public Safety under Subchapter G, Chapter 411, Government Code, for the purpose of creating a DNA record of the defendant;
- In any manner required by the judge, provide public notice of the offense for which the defendant was placed on community supervision in the county in which the offense was committed; and
- Reimburse the county in which the prosecution was instituted for compensation paid to any interpreter in the case.
These are overwhelming conditions, and they too often insure the failure of the probationer. In some instances these conditions force a defense attorney to advise against acceptance of probation, especially for those defendants likely to violate them. This is especially true in some sex offense cases where the offender may be subjected to regular polygraph examinations as a condition of his probation—a disturbing invasion of personal privacy condition which has beenupheld by the courts even though the use of polygraphs have been cast in serious doubt by theAmerican Psychological Association.
And what has this “Texas Tough” approach secured for the state. Texas is number 1 in the nation in incarcerating juveniles in adult prisons; number 1 in prisoners held in supermax control units; number 1 in sending inmates to private “for-profit” prisons; number 1 in inmates being sexually assaulted in its prison system; number 1 in executions since 1977; number 1 in executing juveniles and mentally retarded offenders before U.S. Supreme Court stopped it; and number 1 in DNA exonerations. While the nation and state’s crime rate have decreased over the past two decades, the Texas prison population has increased by approximately 130 percent.
And with a super majority of law-and-order conservative Republicans now in control of the state legislature, it can reasonably be expected that the racially charged “war on crime” will continue in the upcoming legislative session. We dare not think about what can, and will, happen when all those “good ole boys” arrive in Austin saddled up and ready to shoot some coyotes.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair