March 27, 2005 Austin American Statesman "Crime bills carry risk of refilling prisons"

The Huntsville man beat his wife for five days straight, crushed her thumbs, broke both her knees and left her so incapacitated that she could barely move, according to prosecutors. Jurors wanted to send the husband away for life, but the most they could give him was 20 years.

"I wish I'd been there myself and had a gun," said Walker County District Attorney David Weeks, who successfully prosecuted the attacker. "It was that bad."

So when state Rep. Robert Talton, R-Pasadena, filed House Bill 360 earlier this year to quintuple the prison time that such heinous attackers must serve — from a maximum of 20 years to 99 years — Weeks was there along with other prosecutors and victims to urge its passage into law.

Preliminary new statistics show that if only a few of the more than 100 tougher-on-crime bills proposed this session become law, Texas in two years will probably have full prisons and jails, and no place to house a steadily increasing stream of convicted felons.

The situation could be even worse than the historic crisis of the late 1980s, when convicts outnumbered prison beds by 40,000 and Texas had to triple the size of its prison system in five years at a cost of more than $1.5 billion.

This push comes even as lawmakers are pressing to send fewer nonviolent offenders to prison and put them on probation instead as a way to keep from building costly new prisons.

"It's crazy what's getting ready to happen, absolutely crazy," warns Senate Criminal Justice Committee Chairman John Whitmire, D-Houston. "Not only are we going to have no place to put all the new felons these bills would create, but the state absolutely can't afford what that's going to cost. We need to put the brakes on."

One bill, which would enhance the punishment for burglary of a vehicle from a misdemeanor to a felony, could add nearly 800 felons to prisons within five years, projections show, nearly enough to fill a small prison. That change alone could cost taxpayers an additional $1 million for each new prisoner, according to some estimates.

Other bills would increase punishments for burglarizing vending machines, for possessing illicit drugs, for torching a building, even for dog fighting.

In the House, where several bills that criminal justice observers say are among the most worrisome have begun a march toward passage, leaders are similarly worried.

"We're watching them closely as they come through to see what the cost will be, and any one with a big (cost) is going to set off a red alert with me," said House Appropriations Committee Chairman Jim Pitts, R-Waxahachie. "But, yes, some are going to pass — because they have the votes."

Case in point: a vehicle-burglary bill approved last week by the House Criminal Jurisprudence Committee, with a $9 million price tag in added prison costs during the next two years.

After all, they say, what could be more important as a priority for the Legislature than to better protect public safety by getting more violent criminals, thieves and drug offenders behind bars where they cannot create new victims — like the bills targeting auto burglars and assaults with a deadly weapon that do serious bodily injury.

Until 1994, the crime of burglary of a motor vehicle was a felony, punishable with prison time and a hefty fine. In revamping Texas' criminal laws, lawmakers decided that thieves could better be thwarted in community justice programs, and they dropped the punishment to a misdemeanor, punishable by up to a year in jail and a $4,000 fine.

Ever since, said Rep. Vicki Truitt, R-Keller, the author of one bill, "the problem has been increasing so dramatically since the penalties have been lowered." In 2003 alone, she says, burglars took more than $204 million worth of property in auto burglaries.

In Fort Worth, auto break-ins jumped 58 percent from 1998 to 2004. Much the same is true in Dallas and Houston and other large Texas cities, supporters of the bills say.

Truitt's bill and two others would switch the penalty back to a felony, punishable by up to two years in prison and a fine of up to $10,000. Other bills would make auto burglary a felony for repeat offenders.

"If this bill passes, it will max out the prisons as bad or worse than in the 1990s," predicted Ann del Llano, who follows justice issues in Texas for the American Civil Liberties Union. "We simply won't have any beds to put these people in."

Though the Legislative Budget Board earlier predicted prisons would reach capacity in March, officials now say it will probably occur by sometime in May. Then, the state will have to begin leasing bunks in county jails and private prisons, more than 3,800 in the next two years.

Under a plan earlier endorsed by legislative leaders, officials want to avoid building new prisons by placing more nonviolent felons in community-based treatment and probation programs. They also hope to release on parole more medically incapacitated felons, release others on intensive-supervision programs and put others in new community-justice programs as a way to keep prison beds available for only those criminals who need to be there.

But if only a few of the enhancement bills pass into law, the additional felons coming into the system could easily exceed the projected savings in bunk space during the next five years, critics of the bills note.

"We're right there, almost full," said Rep. Terri Hodge, a Democrat from Dallas who heads a House Criminal Jurisprudence subcommittee that is reviewing many, but not all, of the enhancement bills in the House.

"It's tough to balance: a system that's at capacity and the need to protect public safety . . . especially when I don't hear anyone talking about spending the money to build any new prisons," Hodge said. "Whether we like it or not, we're going to have to look at what's causing crime and deal with that.

"Texas has the reputation of being tough on crime, and I don't see that changing," Madden said. "But we can't pass every enhancement (of punishment) that everyone wants. I'll be terribly surprised if very many of these bills goes through. I think members realize there is a cost."

Various bills have been proposed to increase the penalty for burglary of a motor vehicle, which is currently a misdemeanor, punishable by up to a year in a county jail and a $4,000 fine. The new punishments could include time in a state lockup and fines of up to $10,000. Here are the projected effects:

Sources: Legislative Budget Board, House and Senate bill analyses, Senate Criminal Justice Committee, House Corrections Committee