A SJF defendant with two prior final SJF convictions (even if not in sequence)has his punishment increased to a third degree felony.

A SJF defendant with two prior final regular felony convictions that are not in sequence gets punished for a SJF. What sense does this make? Regular felonies are more serious than a SJF felony by definition. This should be changed to make it a third degree felony.

Ken: I have drafted a new version of sec. 12.42 which fixes this problem and many others which I perceive in that statute. I am doing my best to locate a Representative or Senator who shares our concerns (or at least is willing to listen).

There is some reasoning for the differing results. When the SJF originated, it was designed to punish low-level, nonviolent property and drug offenders within a state jail system that was less expensive than a full blown prison.

So, the only criminals who "graduated" from the SJF punishment range were those who had shown they were not state jail felons. If you committed a crime involving a deadly weapon or had a prior conviction for a 3g offense, then you were deemed violent and graduated out (to third or second degree felony, depending on the combination of DW and/or prior convictions).

If you committed two prior SJF crimes, then you really weren't being deterred by the state jail, so you graduated to regular prison (3rd degree felony).

But, if you had prior nonstate jail felony convictions (not in sequence) and only committed SJF crimes, then there was no reason to graduate you. Much of that thinking came from the knowledge that many inmates had exaggerated criminal histories because of the revolving prison system in the late 1980's.

In addition, there were financial considerations. If all of those criminal histories were factored in, the fiscal note would have been larger. Politics.

Now, the purity of all that thinking has not withstood the test of time. It's all too complicated. But, if you were there then, you would know it could have been a lot worse.

Good luck with the amendment. Take a check with you.

Martin
Contact Rep. Bryan Hughes from Mineola. He is responsive. You might call Mark Taylor, DA in Wood County, or Joe Black, DA in Harrison County, as they are in his district.

Bob Cole

[This message was edited by B Cole on 10-15-04 at .]

I've run into this problem two times with defendants who I considered career criminals. We should at least be able to use these the same as prior SJF convictions to get the guy to a third degree felony.

Another area that bugs me is when a defendant has one state jail prior and one regular prior it does not enhance a state jail. How dumb is this?

To fix these problems, it seems like we would only have to make it clear that a prior felony in the enhancement scheme includes any prior felony, regardless whether SFJ or nonSJF. Again, though, you need to have an answer ready for the fiscal note.

One answer would be to show the Leg that the defendant, if not sentenced to a proper punishment, is more likely to commit a new crime.

A little off track, but it seems with the potential for the revolving parole door returning, SJ where that is not an issue may actually guarantee a longer true sentence. In a lot of cases, the offender is actually punished more harshly by 18-24months SJ than by 6-10TDC.

You have to remember, too, that it is not just the cost of a few additional inmates. TDCJ is close to capacity, which means either that there will need to be new construction (and costs) or else the State will have to pay the counties to hold the prisoners (a big cost). Last session, when faced with the capacity issue, folks from both sides drew a line in the sand and stated "No new prisons." Instead, they looked for ways to kick people out of TDCJ, like deporting illegal-alien prisoners, shortening the term of SAF-P, etc. Those folks will be back waiving the same banners. They are not sympathetic to the idea that the TDCJ capacity should increase as the population of the state increases.

I know the fiscal issues will be important but it seems to me that the cost would not be that much greater, if at all, if you simply treat all priors the same so that the offense becomes a 3rd degree felony. Are two years in state jail less costly than 10 years (which these days probably means about 2 years) of pen time? I guess the number crunchers would have to answer that but seems to me it would be about the same. I just think the State is in a better position with a third degree felony than a SJF, and besides, it just seems more fair.

Pardon me while this wave of deja vu passes.

Giving people meaningless prison sentences is not a great goal. Unless someone can prove to me a defendant will serve more time on a 10 year prison sentence than a 2 year state jail sentence, what is the point?

The point is that the law looks at the sentence as more meaningful. It can be used in the future for enhancement. There's no logical reason to allow prior SJF convictions to be used to enhance and not other felony offenses that are SUPPOSED to be more serious. It's not our fault that the parole system lets them go earlier than they should.

A SJF case with any two non-sequential felony priors should be a third degree. If a particular prosecutor wants to prosecute it as a SJF, he/she could simply not enhance.

How about theft under $1500 with two prior theft convictions? I had a d a couple of years ago who had two old, non-sequential theft over $750 cases and five or six other theft cases including three theft under $1500. We could never get him out of state jail land and with a maximum punishment of only two years, the game was hardly worth the candle. He no-showed on trial day however and we filed a bail jumping case....all of a sudden we had a 2-20 range. The jury assessed punishment at eight and the local bondsmen cannonized the trial team! Nevertheless, it seems silly to say that NO previous theft convicition may be used to enhance theft u/$1500. I'll bet thieves cost the economy more than any other class of criminal.

This is a very interesting debate. Here is a little history on the subject.

Back in 1993, when the Legislature established a Punishment Standards Commission, this debate took place among criminal law practitioners, a few of who are still around.

One way the issue was addressed was through the creation of a Ranking Committee. The committee members were given a list of every single offense in the Penal Code and asked to rank from most to least serious.

As part of that process, the committee came up with some rules on what makes one crime more serious than another. Of course, crimes against people were more serious than crimes against property.

And within property crimes, everyone agreed that value of property was often a reasonable method for establishing seriousness. Sometimes, as in a car or gun, the property itself established the seriousness.

So, theft-third offender remained fairly low on the seriousness list because it was a property crime and generally involved theft of property of little value. It was reduced from the third degree to a state jail felony.

And then the question was addressed as to when the offense should be treated more seriously upon repetition in the felony world. Even then, though, the majority view was that it was still a relatively less serious offense than nearly any other felony involving violence or harm to people.

This debate had to happen because of the acknowledgement that we have limited resources. And if there are only so many prison beds, who do you want to make sure are using them?

Of course, you're right, John. Every decision comes with an opportunity cost. To incarcerate theives in great numbers means more money. In the allocation of scarce resources we have to make value judgments. It does seem counter-intuitive, however, that a carreer thief who has the good sense to keep his take per episode below $1500 can never really be identified and quaratined.

[This message was edited by BLeonard on 10-16-04 at .]

All very interesting. I still don't see what this has to do with being able to enhance out of SJF range with prior SJF convictions but not other HIGHER LEVEL FELONIES. Seems like an oversight that makes no sense to me, but maybe I'm just simple minded.

Tim, I don't disagree with your argument that the enhancements, as they have been interpreted by the Court of Criminal Appeals (at least as to the meaning of a prior felony), are inconsistent. And, I don't mean at all to be critical of anyone's desire to punish the repeat offender more harshly, but...

My point is that the push to expand the ability to enhance state jail felony offenses will cost prosecutors much more in the long run than they realize.

I'm going to go out on a limb here and suggest we would be better off only being able to enhance a state jail felony if the defendant has shown a history of some violence. If, as I believe, prisons best serve the public by protecting us from violent criminals, then filling them with violent and low-level property offenders is going to result in the release of some violent offenders that would otherwise not get released.

I believe this because I prosecuted during a time when exactly that happened.

Having said that, I am equally drawn by a concern for the criminal that repeatedly commits crimes, even after serving a prison sentence. There certainly are a substantial number of property offenders (e.g., burglars) that will continue to commit crimes if not kept in prison for a long time.

But, if state jail felony offenses are truly the low-level property and drug offenses we say they are, we should not need to expend expensive prison resources punishing them.

Yes, we would have to live with a certain level of irritation. But, they still get up to 2 years of real time in confinement. That is often as long or longer than what is being served on a 10 year prison sentence.

I'm willing to live with that irritation if it means I get to keep a rapist in prison instead of a repeat shoplifter.

The choice between confining a rapist and a shoplifter is no choice at all. Maybe someone can explain why and how the Punishment Standards Commission determined drug crimes to be more serious than property crimes? Good grief, there are no-probation fifteen-year minimums for certain drug crimes where an aggravated sexual assault of A CHILD can be probated for as few as five years! So long as we must (and we must) factor prison space into our sentencing structure and decisions, and to the extent that drug offenders are taking up space otherwise available for thieves,I would much prefer that recidivist property offenders be the ones filling those spaces.

[This message was edited by BLeonard on 10-17-04 at .]

The real immediate solution is to construct prisons that keep up with the rate of population growth. Yes, we expanded our prisons ten years ago. But that was not the end of crime or population growth.

Now that Texas has grown, it is time to expand prisons to meet that growth. Instead, politicians are pretending they can suppress that growth as it applies to crime and keep prison bed space stable.

That is really where the pressure to reduce enhancements comes from. So, if you want all this (and I do join you in believing it is appropriate), then talk to your state representative and senator, write to your governor, and convince them to build a new prison or two.