[Suggestion: Keep this discussion professional. No name-calling.]

Senator to reject bills that would require more prisons


Penalties don't need toughening when maximums aren't used, he says.
By Mike Ward
AMERICAN-STATESMAN STAFF
Wednesday, March 30, 2005

As an anti-crime bill was easily approved by the House, a Senate leader warned Tuesday that he intends to block any bills that will require Texas to build prisons.


Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, announced that his staff has begun reviewing all bills that enhance prison sentences to determine whether they will generate prisoners ? and how many.


"They're not going anywhere," said Whitmire, referring to the dozens of Senate and House bills that would enhance punishments for a variety of crimes, including auto burglary, theft from vending machines and dog fighting. As chairman of the committee that oversees prisons and criminal justice issues, Whitmire has the clout to keep bills from passing out of his committee.


"If it's really an issue of public safety, then we'll find the money to get the additional (prison) beds. But with many of the bills I've seen, we're being asked to enhance penalties when prosecutors and judges aren't even sentencing people to the full penalties now.


"So far, I haven't seen any enhancement bills I believe we absolutely have to have."

Don't know about you guys in other counties but I have a hard time getting defendants to bite on my plea recommendations when I'm recommending the maximum sentence for the offense. I'm not sure that I understand the logic behind the good senator's reasoning here.

There is no logic. Only politics.

The problem with Sen. Whitmire's analysis is that it proceeds from flawed assumptions. First, of course, prosecutors don't "sentence" defendants. We make recommendations for sentencing to judges (in the case of plea bargains) and juries or judges (in the conventional trial setting). That process entails review not only of the facts of the case and the controlling law, but also the proclivities of our jurors and judges. Moreover, in the context of plea bargaining, the senator's implied message is that prosecutors aren't using current maximum sentences. But, as pointed out above, steadfastly offering the maximum in all cases isn't "bargaining" at all. If a particular prosecutor's docket, jury pool and judiciary are such that maximum sentences are generally attainable in all sustainable cases, then more power to that prosecutor. Most of us don't work in such a utopian place. That a maximum sentence may not be plausible in a given case is no reason to "throw out the baby with the bath water" in the larger scheme of things. In fact, common sense tells us that increased maxima in available sentences may pave the way for higher negotiated sentences.

John, a reliable source you were a person Whitmire turns to for advice on criminal issues in regards to legislation.

Is Senator Whitmire not listening to you or other prosecutors at all in regards to probation revocation changes or punishment minimums? What is motivating this attitude toward prosecutors?

I have voiced my concerns, for what little they are worth, to Senator Whitmire through another channel which I'm not allowed to mention on the website regarding his proposed legislation on probation revocations.

I'm baffled by these remarks as Whitmire has in the past very supportive of law enforcement.

If the idea is that the maximum sentences are not being handed down often enough, then increasing the maximum is exactly the way to do it. I can't get a defendant to plead for 20 years when 20 is the max, but if you raise the cap to 99, that 20 starts to look a lot better.

Here are various thoughts for consideration.

Senator Whitmore was around when the Penal Code was rewritten and was very supportive of law enforcement's concerns during that period. Indeed, he had been robbed at gunpoint in his own garage, along with his wife and child. So, he had a personal feeling for the need to lock up the bad guys.

He also saw that the Penal Code had been enhanced to the point that too many crimes could result in very long prison sentences, making the relative seriousness of violent v. nonviolent crimes meaningless. He also saw that unrestricted enhancements led to prison overcrowding, early release and higher crime rates.

So, he, along with many prosecutors, agreed to rewrite the Penal Code so that it had a more rational ranking of the seriousness of crimes. The punishment for nonviolent, property crimes (such as burglary of a vehicle) was reduced to make sure that the punishment for violent crimes would actually be carried out.

Burglary of a vehicle was a turning point in that process. The Criminal Justice Policy Council found that approximately 4,000 prison beds, at that time, were being devoted to BMV punishments. That meant 4,000 beds were not available for murderers, rapists and robbers.

Anyway, to make a very long story short, many prosecutors and other law enforcement people agreed to make the trade to achieve more prison beds for violent criminals.

Of course, many also did not agree with that trade and wanted to retain felony punishment status for BMV. The same could be said for many of the other shifts in punishment (e.g., reduction of delivery of CS from first degree felony to state jail felony).

So, one has to at least understand that Sen. Whitmire has all that in mind when he resists enhancements. He is being true to the approach he took over a decade ago.

Are there any offenses that really need to be enhanced this session? I should think that avoiding gutting probation gets priority over making more felonies. Whadaya think?

I agree that I'm not heart broken if we don't get a new slew of felonies. Although I have always thought BMV should have been a SJF, I won't (and didn't) loose any sleep over it being a class A. In fact, I think there are a few SJF that could stand to become Class A (some again) like Evading in a Vehicle, some cruelty to animals, make forgery based on an enhanced value ladder (ie: one level higher than theft). I also agree that keeping probation reform realistic and based on some semblance of fact would be more important than giving us some more SJFs to worry with.

At the risk of bringing everyone's ire down on me, it sounds to me as if the Senator was trying to say that we already have appropriate punishment ranges in place and that we don't need a bunch more mandatory minimums, enhancements and the like because we have a wide enough range already. In other words, unless there is a real need demonstrated let's not raise punishment ranges or create new mandatory minimums just to look good politically. IF that's what he meant, I agree with him. That is a separate and distinctly different issue than the probation revocation issue.

I keep hoping that, as I get older, my propensity to pop off will recede. Maybe someday it will. I think Tim asserts a meritorious viewpoint. From my office's perspective, I'm much more invested in seeing the reforms to DWI law get through than in creating new felonies or mandatory minimum sentences.

I would much rather have prison space for sex offenders and violent offenders than property offenders if no new prisons are going to be built. I think Sen. Whitmire is simply being realistic in terms of limited dollars available to build new prisons. I just wish he had expressed it that way.

Amen on the DWI legislation. It's far more important to me, along with not gutting probation, than creating new felonies.

I concur with my boss (Tuck)on the issue of a few kinds of cases should actually be bumped down to misdemeanors.

I agree with you Ken. It sounded like an attack on prosecutors when I don't really think it was meant to be that. On the other hand, I have had a lot of experience lately with quotes being taken out of context and misquoted so I wouldn't necessarily lay long odds on what the Senator was quoted as saying as actually being what he said ... if you know what I mean. I also agree that the DWI changes would be a much greater benefit to us than changing offenses into new levels or raising punishment ranges.