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Hard Time for the Penal Code BY JAMES CULLEN SENATOR JOHN WHITMIRE got much of the credit for steering a penal code reform package virtually intact past Senate shoals, but high-profile parolee Kenneth McDuff, who recently got a return trip to death row for the murder of a Waco woman, probably should get credit for an assist. Without McDuff’s now-controversial parole in 1989 one of thousands that were part of the early release programs of the 1980s to make room for drug offenders and the resulting mayhem, who knows if Whitmire, a Houston Democrat, would have been able to maintain the alliance of law enforcement and victims’ rights groups that pushed for the first major penal code revision in 20 years? Lieut. Gov . Bob Bullock, who presides over the Texas Senate, called Whitmire’s package of three bills and a constitutional amendment “a very workable, sensible solution to a very difficult problem,” that being the persistent overcrowding of the Texas prison system ever since the state declared war on drugs in the early 1980s. Senate Bill 532 by Whitmire would create the State Jails Division within the Texas Department of Criminal Justice, with 20,000 state jail beds that would come on line by September . 1995. The proposed state jails are supposed to include drug treatment and educational programs to rehabilitate non-violent offenders including many convicted for possession of small amounts of drugs and would free more secure prison beds for hard-core and violent convicts. The accompanying Senate Bill 1067, the first comprehensive revision of the state’s penal code in 20 years, creates a new category of non-violent state jail felonies and makes them eligible for community-based rehabilitation programs. Under the new plan, violent criminals would have to spend twice as much time in prison before becoming eligible for parole. Minimum time served in violent offenders would increase from one-fourth to one-half of the sentence. Most murderers, rapists, armed robbers and child molesters would face a minimum of 30 years in prison instead of the current 15 years, and the minimum term for capital murderers would increase from 35 to 45 , years. Texas House leaders indicated they would accept the Senate package as a substitute for the recommendations of the Punishment Standards Commission, which focused on “truth in sentencing” provisions and more community-based rehabilitation. But even if the House resists the temptations to load the penal code reform bill with crime-fighting amendments that will further pack the state’s prisons, Texas is still heading fora doubling of its inmate population by late 1995. The state now has approximately 59,000 ers have authorized bonds to build prisons with another 50,000 beds. Another 10,000 beds under construction would be used as “transfer facilities” aimed at removing convicted felons from county jails. The Legislature is expected to spend $3 billion on corrections in the next two years, a 35-percent increase over the 1992-93 biennium. S.B. 532 depends on a constitutional amendment, S.J.R. 45, which would authorize another $1 billion in general obligation bonds for construction of corrections and youth corrections facilities. With S.B. 108 the enabling legislation for the bonds, the proposition would provide for $500 million in bonds to build the jails and another $500 million in surplus bonds to be held for future criminal justice needs. In 1995, when state jails are on line, Whitmire expects they will need emergency appropriations of more than $200 million to operate them. For the second time in three years voters are being asked to approve a billion-dollar bond issue for prisons, but Whitmire sees little choice. “We’re going to spend it either in fines or in payments to counties or we can build our own facilities and take our own people like we should,” he said. Lawmakers have set aside $18.6 million to pay for fines imposed by U.S. District Judge Norman W. Black of Houston after the state failed to meet an April 1 deadline to relieve the backlog of felony convicts in county jails. The fines cost the state an estimated $100,000 daily, but state officials say the backlog may not be cleared up until until the next round of prisons are operational in 1995. Texas is one of 42 states under court orders to relieve prison overcrowding. Its prison population is second only to California, which has 163,100 inmates. With the new penal code and sentencing guidelines, Texas is projected to have more than 183,000 prisoners by the year 2000. The bill now goes to the House, where members of the Criminal Jurisprudence Committee have heard testimony on a package of bills including H.B. 1234, which is based on the recommendations of the Punishment Standards Commission. But while the House bill envisioned state jails as serving primarily as a backup to community corrections and rehabilitation programs, with a maximum stint of six months in lockup, the Senate bill conceives of the state jails as a direct sentencing option, with stays of up to two years, which is the practical equivalent of a 20-year prison sentence under current rules. The House bill provided for a sentence to community supervision, which would be a new concept in Texas sentencing law, but the Senate version provides for a sentence to the state jail, which would include community supervision as part of probation. Representative Allen Hightower, a Huntsville Democrat, chair of the House Corrections Committee and sponsor of the House bill, said his substitute version resembles the Senate bill, but also includes a proposal to allow judges to use state jails as an option for first-, secondand third-degree offenders who are placed on community supervision. While he originally supported the concept of “truth in sentencing,” or more control by courts and juries over the time a convict will serve in prison, Hightower said he would rather see “truth in legislating,” where lawmakers would realize that they cannot pass every crime-fighting bill that comes up without considering where they are going to put the prisoners. “It makes no sense when you send in a hot check writer to have to kick out an aggravated rapist to make room,” he said. He also questioned whether the state will be able to afford two-year maximums on the state jail terms. Richard Anderson of the Texas Criminal Defense Lawyers Association applauded the elimination of duplicate statutes and “crimes du jour” that have accumulated since the last revision in 1973, as well as the communitybased rehabilitation programs and state jails that free more secure prison space for violent offenders, but he warned that the package does not include truth in sentencing for jurors, fails to account for aberrant cases that may fall in with major crime categories, increases the number of those major crimes and fails to guarantee funding for alternative programs that are the most progressive feature of the reform package. Rev. Lev Reynolds, a member of the Task Force for Justice and Criminal Affairs of the Texas Conference of Churches, said monitoring the penal reform process has been very frustrating. “I think we have concerns about the state jails, which sound like warehouses instead of treatment alternatives. There should be education and rehabilitation resources.” The system now results in wildly varying punishments, perhaps illustrated most dra 6 MAY 7, 1993 wN’T0 00,00*914..r o li