111 views and only 4 votes? I guess folks don't care what the Lege does ....
What we don't care to do is publicly comment on a political fight. No one thought the current sex offender laws were too light until Bill O'Reilly went on national TV and called out Gov. Perry. Suddenly, his opponent, no doubt seeing an opening for some free press, came to the conclusion that things weren't tough enough.
There is a great scene in the movie True Grit. John Wayne, playing a U.S. Marshall, is told by a young girl, who is paying him to catch her father's killer, that she wants him brought back to her home to be punished, not back to Texas and hanged for a separate crime (of killing a senator and his dog). He listens patiently and then explains that he would be quite glad to hold down the killer and make him eat dirt, but "first, you got to catch him."
All the pundits, politicians and talking heads, act as if the easy part is catching the sex offender. But, for those of us who actually participate in the work of investigating and prosecuting criminal cases, know that collecting evidence against a sex offender is difficult work.
They are sneaky and deceptive. They pick victims who can't talk. They destroy the evidence. And then they run off to find new victims.
So, if politicians really wants to talk about changing the law, I suggest they focus on making it easier for investigators to catch and prosecutors to prove sex offenses. Otherwise, all this silly talk about life without parole is a waste of time.
My vote was "other". It would have been for "we don't need either change", except I could not go along with "we do just fine as it is". I think that aligns me with JB. This is a difficult problem to tackle, but increasing the penalty or making anything mandatory is not the way to secure control over the offenders or prevent the occurrences. Monitoring will always be no more than a false sense of security.
Agree with John mostly but also think a mandatory life w/o parole would be good for certain classes of sex offenders (i.e. victim under a certain age, etc).
Yes I know we have many fine legislators but lets face it, there is no way the defense attorneys in the leg are gonna pass a bill with either a 25 year minimum or a mandatory life provision without sigificant pressure from their constituents.
Shannon, you must come down from the rarified air of the Capitol complex, rubbing noses with the big boys, etc., and spend some time with those of us "in the ditch." Right now, I'm still trying to comprehend that our courthouse elevator is broken, it may take 6-8 weeks to get it repaired (if the county can come up with the money), and I now have to climb a flight of 50 stairs to get to my office...(WHEEZE). Trouble and crises are always relative!
I do have a response viz. extended periods (if not lifetime) treatment post release (whenever, or if, such occurs).
The procedures for civil commitment of sexually violent predators are well intentioned but badly constructed so as to place a burden on a court to determine in each case whether a person scheduled for release from TDCJ should be subject to same.
An example, though the Texas Supreme Court's decision misses the point, is the Fisher case wherein a mentally retarded offender was civilly committed to indefinite treatment. The problem from a constitutional point of view is that it is fundamentally unfair to require of a defendant participation in a program in which he cannot, because of his condition, adequately participate as these treatment programs (as minimally effective as they may be) require both intellect and verbal skills. The defendant had neither. And remember this was a civil commitment. He cannot well participate and will not profit from same. However, extended monitoring and other conditions of release would be appropriate.
On the other hand, it would be very proper, and I think useful for the citizenry, to know that a sexual offender, when released, was subject to a statutory period of treatment and/or monitoring -- as provided in the criminal statutes as opposed to going through the laborious (and, I think, not well put together) process of civil commitment, as it is not really quite civil, Kansas v. Hendricks nothwithstanding). I have no specific opinion at this time on the length of such treatment and/or monitoring.
Mandatory anything tends to concern me. When you have mandatory minimums/ no probation/ no deferred or whatever "NO" is politically popular, it has been my experience it backfires. What happens to those "close call"/weak witness sexual assault/indecency with a child cases. They will frequently become no bills where a probable sex offender walks away to continue his "hobby". As the law exists now I can at least get the defendant supervision and have them registered. Are those advocating these minimums also suggesting we put the 21 year old having consensual sex with a 17 year old in TDCJ for 25 minimum. I hope not. The two things I love about Texas criminal practice is the huge punishment ranges and jury sentencing. They go hand in hand. We are generally able to make the sentence fit almost any set of facts no matter how egregious or how minor. Let juries decide and set the "standard" for subsequent pleas. If a prosecutor or judge is out of sync with the electorate, throw us out. The "mandatory" or "NO" provisions in Texas law that I routinely deal with have been failures and resulted in more inventive "charge bargaining" (No DWI deferred, No CDL deferred, Mandatory SJF probations, etc). These provisions are really people telling prosecutors and judges they don't trust us to have the discretion to do the right thing within the confines of the law. I hope we haven't got to that point in Texas. Perhaps I'm wrong.
Doc, regarding your view about "...putting the burden on a court..." for civil commitments -- the civil division of my office, the Special Prosecution Unit, is the agency responsible for the sexual predator commitments in Texas. And those hearings/burdens are put before juries, with testimony, evidence, experts, etc. And, in every one of those cases I've testified in, there have been at least two, sometimes three defense or respondent, as they're called in the hearings, lawyers to strategize and manuever on behalf of sexual predators. I don't think there is an undue burden put upon Judge Reiter or Judge Allworth in these hearings.
I would rather see procedural changes that help us than mandatory minimums. Who is having trouble with juries not giving enough time in these cases? How about a change that ends the probation voir dire game. The O'Reilly stuff burns me up. I caught his show the other day and was I ever surprised to see that Texas is a "purple" state on his child abuse map, indicating that we have in place a 25 year minimum for first time offenders who sexually assault a child under 12. Darn, that would have been nice to know this week as I selected the jury in my case in which I was laboring under the apparently ignorant belief that the defendant was eligible for probation on a 5 to 99, Life, range.
Viz. the civil commitment proceedings of sexual predators: But rather than making it a "civil" proceeding, wouldn't the process be cleaner and less cumbersome if it were built into the penalty, thus established at sentencing? Why burden the state with another proceeding? Moreover, the burden, if I may use that word, is put on the expert to testify to the necessity for continued treatment. Why do that? Why not specify from the outset the period of incarceration as well as any subsequent period of treatment and/or monitoring?
Why? A simple answer; the same answer that is almost always the answer when people ask why the law stops short.
Shannon, the problem in this case is that more money is being expended with the present ungainly procedure, not less. I have been told that the Senator promoting the initial bill was concerned to provide a means of continued treatment and monitoring for the persons now in TDCJ and didn't want to build-in the same program into the penalty because a number of offenders would not be followed. But, there is no legitimate reason why we cannot now go forward to change the Penal Code and/or CCP with regard to this status of offender. Morover, such changes would allow distinguishing between people like Fisher who cannot participate in treatment and would, therefore, need more intense monitoring, from offenders who might indeed benefit from long-term treatment.
We are the only state with a civil commitment law in which the civil commitment process involves no "commitment." Think about it -- other states lock up (i.e., "commit") those to whom the law applies, but we just "supervise" them. And the reason why is that the well-intentioned sponsor(s) basically could not attract enough support to pay for locking these people up, so they did the next best thing. That's also one reason why we have less than 60 people in the system right now -- the criteria were kept very narrow. Otherwise, the law would not have passed b/c the fiscal impact to the state would have been too large. Or so I've been told.
Welcome to Policymaking 101, folks.
When the civil commitment program was being organized in Texas, using the Kansas & Washington models as go-by's, there were something like 24,000 sex offenders in Texas prisons approaching or at parole time -- each one of those would have had to have a facility to go to (preposition attached) and guards, feeders, etc. Also, trials or hearings for each one would have to be conducted, unless we could just automatically appoint each sexual deviate into a colony based upon his or her previous conviction. Personally, I have no problem with locking child molesters and violent, predatory abusers of mankind into a cell somewhere, so they can't reach into the population of the innocent and helpless.
But, they think I'm too harsh, I guess. So it was determined that so-called intensive supervision was a realistic, affordable approach to keeping the hordes of Texas SVPs or sexually violent predators, at bay.
Because our unit happens to be familiar with prosecuting prison crimes and all the ins and outs of coordinating trials and transportation and all the other stuff involved in taking a convict to court, a civil division was instituted
at the S.P.U., and they conduct the civil hearings in which SVP's are hopefully, determined by juries to warrant civil commitment. Even doing it this way ain't cheap, of course it is for the fingerprint experts, because we aren't real experts. But consider that every hearing involves two or three or more PhDs, M.D.'s, whatchamacallits who put wires on the bad guys thing and make him look at certain photos, court reporters, judges and light bills. So, it does cost a lot, even the cheap way.
But it's all we've got right now. Of course there's the convention center in New Orleans -- which might make a suitable home for society's worst offenders.
It's odd that I am arguing from a tougher position - but my point is simply to build in the intensive post-release program into the sentence, and grant the court the right to impose a host of monitoring conditions -- all from the getgo, without calling it civil, without another proceeding...
After being civilly committed, the sexual predator goes through a bi-annual psychological assessment, which coincidentally happens every two years. The psychologist submits a report to both the Special Prosecution Unit's civil division and the defense lawyers who want the predator to be free to do as he pleases.
The S.P.U., after receiving the assessment report submits a prepared order to the Court, for the subject to continue for another two year term on his civil commitment. The defense will usually put up a fight, if not to get the person totally released from commitment, then to get some portion of his sanctions relaxed. Like when the Freeway Rapist fought last year to get his driver's license back. Yes, the man who preyed on victims from his vehicle needed his license back so he could...you guessed it, drive his car. Once the bi-annual process is finished, the civil sanctions continue for another two years.
So far, FYI, since its inception 4 years ago or so, time flies you know, the S.P.U. has lost one civil commitment case, due to jury misconduct -- not the kind of misconduct that you lawyers are thinking of, the other kind, where the jury makes the wrong decision -- that kind of misconduct. There have also been two hung juries, and after re-trials, justice prevailed and one of those predators did get civil commitment; the other of the two was determined to be mentally challenged, and he, with agreement by the parties, was taken to a mental health facility.
New Hampshire Union-Leader
CONCORD � Prosecutors who handle cases against child molesters disagree on whether mandatory 25-year prison terms would help them protect children from sexual attack.
Some feel such a tough sentence would get offenders off the streets and protect children longer. Others feel they would lose the ability to plea bargain and salvage cases that involve weak victims. Worse, they fear that some offenders may decide to follow their abuse with murder to eliminate the only witness to the crime.
Longer terms for sex offenders who victimize children is fine with Strafford County Attorney Janice Rundles.
"There's really nothing wrong with that, in my point of view. It's a very serious crime," she said. But she said it will hamper some prosecutions.
"I'm sure it will mean the end of plea bargains," she said.
Sullivan County Attorney Marc Hathaway said the loss of plea bargain power will hurt deeply.
The accused will have nothing to lose at trial, where child victims will have to testify. Weak victims make for weak cases, said Hathaway, chairman of the state County Attorneys Association.
"I assure you the number of those convicted would go down, and there is a cost to society in not punishing those people, in not supervising them and in not having them receive treatment," he said.
He said he uses the plea bargain to salvage a case that's failing.
"Maybe a victim is too young or scared to testify, or has other problems that might detract from her credibility. When that happens, we try to get what we can," he said.
Rockingham County Attorney Jim Reams said he favors the mandatory minimum of 25 years, as well as the lifetime monitoring provision.
"We need to get more serious about this," he said.
Current law, he said, sets up a three-strikes standard. A third conviction means life in prison without parole. Reams said the law, described as ambiguous in a state Supreme Court decision, needs to be tougher.
"I don't see why we need to sacrifice that third child," Reams said. The Jessica's Law model calls for mandatory life without parole for a second offense.
He said he sympathizes with young victims who face the added trauma of testifying against relatives or friends of the family. But sex crimes already go to trial more often than other cases because molesters figure their chances of acquittal are good, he said.
Hillsborough County Attorney Marguerite Wageling, who began work in this area in 1985, sees the need for long sentences but thinks the plea bargain is a powerful tool.
Without it, she said, "you're creating an all-or-nothing situation and that's going to put an awful lot of pressure on an awful lot of victims. It's an idea that sounds much better in theory than it plays out in the real world. And, unfortunately, almost all my experience is in the real world."
Lauren Noether, Belknap County Attorney, said if denied the tool of plea bargaining, prosecutors will bargain over charges: reducing an aggravated felonious sexual assault to a lesser charge just to make sure some jail time is imposed.
She said she'd also like to see more consistency in sentencing. More serious prison time is set for adults who touch children, yet are relatively light for adults who coerce children into touching them.
Several prosecutors note that New Hampshire has a death penalty for cases like the Florida murder of 9-year-old Jessica Lunsford, where kidnapping and rape were involved.
Rundles said that if the state is not ready for a mandatory minimum prison term, it ought to raise the maximum for the most heinous crimes.
She'd like to see that increased to a possible life term.
Rundles also said the state should consider locking offenders up through a civil commitment. She said the Legislature once considered commiting sexual predators, but chose instead to order lifetime supervision through a sex offender registry.
"Parole and probation are only as good as the caseload of the person managing the offenders," she said.
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