Legal experts warn against changing penal code

HOUSTON – Lawmakers who tinker with the state’s penal code unintentionally could cause future prison overcrowding, a state senator and some legal experts worry.

State Sen. John Whitmire, D-Houston, who served as the chairman of the Criminal Justice Committee and rewrote the code in 1993, said lawmakers’ good intentions could have unintended consequences. He said each time the code is altered, interpretation becomes more difficult.

“The idea of a penal code is to have broad categories and leave it to prosecutors,” Williamson County District Attorney John Bradley said. “You can’t come up with a list of all the dumb things people do.”

The code was rewritten in 1993 based on an American Law Institute model. When the rewrite occurred the state’s guidelines had been amended so many times they were unmanageable. Since that time, the amendments have begun once again, Whitmire said.

“There are literally hundreds of bills passed which reach into the penal code of 1993,” he said.

A council formed by the Legislature in 1983 blamed the previous code for the state’s growing prison overcrowding, which later became a crisis, the Houston Chronicle reported in Sunday’s editions.

The overcrowding problems became so severe in the late 1980s and early 1990s that the state’s parole board released violent criminals to make room for those with more recent convictions.

A commission formed in 1990 later responded to the crisis with a revised penal code. The new standard ended early parole for those convicted of violent crimes, reduced the prison population by easing penalties for nonviolent offenders and created a state jail system. New prisons also were built in an effort to alleviate the bulging prison population.

Additionally, the rewritten code broadened the discretion of prosecutors and judges when it came to assessing punishment.

“The main things in 1993 were the lowering of punishment for drugs and some property crimes but also raising sentencing for violent offenders,” said Carl Reynolds, former executive director of the Punishment Standards Commission. Reynolds now is general counsel for the Texas Department of Criminal Justice.

In 2000, the Northwestern University School of Law said Texas’ code was simple, complete and accurate in assessing punishment.

Amendments to the code since 1993, however, have burdened judges and prosecutors and likely will result in another overhaul, said Bradley, who was a member of the Punishment Standards Commission.

“The penal code passed in 1993 retained broad discretion and wide punishment range, but the Legislature has done a good job of going back to its undisciplined ways, and every session they play with the punishment,” he said. “No one ever reduces the punishment _ they increase it.”

As a result, legislators can say they are tough on crime, but the harsher sentences raise the possibility of future prison overcrowding, he said.

“We’re about halfway through the overloading process,” Bradley said. “The effect will be a crowded prison system. They will respond by releasing people, crime rates will jump, people will get angry and the Legislature will respond by fixing it.”

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