TEXAS STIFFENS PUNISHMENT FOR SEX OFFENDERS

Houston Criminal Defense Attorney John T. Floyd Discusses Lynch

Mob Mentality of 2007 Texas Legislature Handling of Sex Offenders

The 2007 Texas Legislature enacted a number of measures that severely

increased the punishment for sex offenders. One of those measures makes
second convictions for first-degree "sexually violent offenses" involving
victims 14 years of age or younger a capital crime punishable by death or
life without parole. A "sexually violent offense" is indecency with a child
involving contact, sexual assault, aggravated sexual assault, sexual
performance by a child, aggravated kidnapping involving intent to violate or
abuse sexually, and first-degree burglary committed with intent to commit
one of the sex offenses in this list.

Previously only certain types of murder qualified an offender for the death
penalty in Texas. This capital murder statute listed nine circumstances or
types of victims that qualified murder as capital murder. One of those was
murder committed during the commission of an aggravated sexual assault. A
life sentence was the maximum penalty for anyone convicted of committing
an aggravated sexual assault of a child 14 years or young without the victim
being killed. A person must serve 35 years on a life sentence in Texas
without consideration for time off for good behavior.

Furthermore, some repeat sex offenders faced additional sanctions under the
Texas Civil Commitment of Sexually Violent Predators Act (TCCSVPA)
after being released from a state prison or mental health facility. This Act
allows for “sexually violent offenders,” who suffer from a behavioral
abnormality that makes them likely to engage in sexual violence, to be
committed through the courts to outpatient treatment and supervision. While
in this outpatient and supervision programs, these offenders are subject to
intensive sex offender treatment, GPS tracking, housing and transportation
restrictions, excluded from child safety zones, mandated to undergo
polygraph examinations, substance use testing, registration every 30 days,
and strict case management. A failure to comply with a civil commitment
order imposing these requirements is a third-degree felony. Through March
2007, there were 69 sexually violent offenders who had been placed in the
TCCSVPA program – 27 of them still under intense monitoring and
receiving treatment in the community.
The 2007 Legislature now requires that the tracking service used to monitor
TCCSVPA sexually violent offenders track the offenders in real time,
providing real-time reports of the offenders' locations, and submitting
cumulative reports of the offenders' locations. This new legislation applies to
anyone serving a sentence in the Texas Department of Criminal Justice on
September 1, 2007 or to anyone currently committed to the TCCSVPA
program for any offense committed before, on, or after that date.

The 2007 Legislature also increased the penalty for other offenses involving
victims 14 years of age or younger. The penalties were increased for
indecency with a child involving contact and for sexual performance by a
child if the victim was younger than 14 years of age from a second-degree
felony [two to 20 years in prison and optional fine up to $10,000] and/or
from a third-degree felony (two to 10 years in prison and an optional fine up
to $10,000) to a first-degree felony punishable by life in prison or a sentence
of five to 99 years and an optional fine up to $10,000.

The 2007 Legislature enacted legislation that prohibits a defendant convicted

of aggravated kidnapping of a victim 14 years of age or younger from
raising during the punishment phase of his trial the issue of whether he
released his victim in a safe place qualifying him for a lower punishment.
The effect of this legislation means that anyone convicted of aggravated
kidnapping of a victim 14 years of age or younger, whether or not there was
intent to abuse the victim sexually, will be punished for a first-degree felony.

The 2007 Legislature also removed parole eligibility for certain repeat
sexually violent offenders whose victims were 14 years of age or younger.
Offenders receiving mandatory life sentences for convictions involving
indecency with a child, sexual assault, aggravated sexual assault, aggravated
kidnapping involving intent to violate or abuse sexually, first-degree
burglary with the intent to commit certain sex crimes, or sexual performance
by a child are ineligible for parole provided they have a prior conviction for
one of these crimes or a prior conviction for possession or promotion of
child pornography, obscenity involving materials and activities by children,
or prohibited sexual conduct (incest).

The 2007 Legislature also increased the statute of limitation for the
prosecution of “sexually violent offenses” committed against victims
younger than 17 years of age from ten to 20 years from the 18th birthday of
the victim. The statute of limitation for indecency with a child by exposure
remains at 10 years from the victim’s 18th birthday.

Lawmakers responsible for this “tough” legislation argue that it protects

society from the horrific crimes committed by sex offenders. They say that
increasing sexual abuse and assaults against children is so terrible that the
death penalty is the only appropriate and just punishment for some of these
repeat offenders. They contend that Texas should take the lead inflicting the
most severe penalty on “sexually violent offenders” who repeatedly commit
sex crimes against children – death for some and mandatory life sentences
for the rest.

These lawmakers also point to what they call “safeguards” in the death
penalty process. They contend prosecutors would review the death penalty
eligible cases carefully before deciding whether to seek that penalty, and
would reserve that penalty for only the worst cases. Historically, they argue,
only 10 to 20 percent of the death penalty eligible cases are tried as death
penalty cases. A further protection, they say, is that juries would carefully
consider the facts of each case and impose the death penalty only in the most
appropriate cases. And, as in all death penalty cases, the jury would be
required to answer questions about a defendant’s future dangerousness and
consider all the mitigating circumstances about him before imposing the
death penalty.

Proponents of the death penalty for violent sex crimes against children
dismiss concerns by legal scholars that these capital measures will be
declared unconstitutional by the U.S. Supreme Court. These proponents
point to other states – South Carolina, Montana, Louisiana, Oklahoma, and
Florida – who have adopted similar legislation. In fact, they point to the
Louisiana Supreme Court decision this past May which upheld that state’s
death penalty statute that was applied to a step-father who raped his eight-
year old step-daughter.

The Louisiana case will work its way to the U.S. Supreme Court where that
state has not enjoyed much success defending the death penalty in sex
crimes. In 1976 the Supreme Court struck down Louisiana’s aggravated rape
statute, saying that the death penalty for aggravated rape violated the Eighth
Amendment’s prohibition against the infliction of cruel and unusual
punishment. The following year the Supreme Court in a Georgia case once
again made it clear that the death penalty for rape of an adult female violated
the Eighth Amendment.
Proponents of the death penalty for violent sex crimes against children try to
distinguish the penalty for these crimes from the death penalty struck down
in adult rape cases. While the Supreme Court indeed used explicit language
that the death penalty could not be imposed in a case involving an adult rape
victim, it does not automatically follow that age of the victim will be the
constitutional benchmark for deciding the death-for-rape issue. The
proponents counter by pointing to the recent political conservative makeup
of the high court as well as the research concerning the harm caused by child
sexual abuse and the recidivism rate of child molesters as compelling
evidence to support their belief that the death penalty in child-rape cases will
be upheld.

The political, and legal, logic of these proponents who overwhelmingly

influenced the 2007 Texas Legislature simply does not square with the facts.
Child sexual abuse has been significantly declining since 1990. The National
Child Abuse and Neglect Data System of the University of New Hampshire
(NCANDS) reported a 40 percent decline of such cases between 1991 and
1999 with Texas being one of the 41 states reporting a decline. The U.S.
Justice Department put the decline rate even higher at 56 percent during that
same period. The NCANDS and Justice Department data is supported by the
FBI’s Uniform Crime Reports and the prestigious National Crime
Victimization Survey (NCVS) which reported a 67 percent decrease in
sexual assaults of teenagers between 1998 and 2004.

David Finkelhor and Lisa M. Jones, writing in the U.S. Justice Department’s
“Juvenile Justice Bulletin, said the decrease in child sexual abuse in the
1990s represented a decline from an actual 150,000 cases to 89,500 cases
nationwide. The U.S. Department of Health and Human Services reported
the decrease continued through 2002 with 88,656 cases reported, and
NCANDS reported a continuing decline in 2003 with 78,188 cases. USA
Today this year reported similar decreases through 2006.

This trend toward declining sexual abuse of children was preceded by a 15-
year period of annual increases in child sexual abuse cases. This prompts the
natural question: why didn’t the Texas Legislature enact the death penalty
for repeat sexually violent offenders during the 15-year period [1975-1990]
when child sexual abuse increased each year rather than wait until there had
been a 16-year decline?
And what about the other reason offered by proponents of the “get tough” on
sex offenders legislation: the high recidivism rate attributed to sex
offenders?

The National Geographic Channel reported in a recent documentary entitled

“Prison Nation” that 60 percent of all prison inmates released nationwide
will recidivate within three years. The U.S. Justice Department’s Bureau of
Justice Statistics puts the nation’s recidivism rate lower at 43 percent with
less than 15 percent of those being for sex offenses.

Several years ago Texas had 9,000 sex offenders who had committed crimes
against children in its prison system. The vast majority of those offenders
will be, or have been, released because they secured favorable plea bargains
from prosecutors. The primary reason for repeat sex offenses is not, nor has
it ever been, the perverted nature of the offender, but the willingness of
prosecutors to plea bargain with these offenders. Why? Because half of all
the offenders who sexually abuse children are parents (with almost all of
them being fathers), according to the U.S. Department of Health and Human
Services. Prosecutors do not like sending “dads” to prison – not even those
who sexually abuse their children.

The percentage of these 9000 offenders who will commit new sex offenses
can be directly linked to the lack of meaningful treatment they will receive
in the Texas Department of Criminal Justice. This column has previously
reported the correlation between treatment programs and reduced recidivism
rates for sex offenders. For example, the State of Washington leads the
nation with penal sex offender treatment programs and they offer impressive
data to support those programs: 2.7% of the sex offenders who did not
receive treatment and released from prison were convicted of a sexual felony
within six years while only 1.8% of those who received treatment were
convicted of a sexual felony within six years. The figure is even less for
those offenders who wanted treatment but couldn’t get it – 0.t6%. Prisons in
the United States, Canada and other Western countries who offer serious
state-of-the-art sex offender treatment programs report that only 9.9% of sex
offenders who participate in these programs re-offend with new sex crimes
while 17.4% of those who do not receive treatment re-offend with new sex
crimes
“There’s pretty good evidence that if you pick out the right kind of people,
who feel badly about what they’ve done, you can alter those patterns,” said
Roxanne Lieb, director of the Washington State Institute for Public Policy.

The problem is that too many states, like Texas, are not willing to invest
money into legitimate, proven treatment programs for sex offenders. These
states want to either lock them up and throw away the key or kill them.

“The reality is this: Nothing beats intelligence,” said Robert Packard, a

clinical forensic psychologist and past president of the Washington
Association for the Treatment of Sexual Abusers. “We spend no money on
trying to understand how to do better – how to evaluate and treat offenders
better.”

The economic math of this issue begs scrutiny. Let’s assume that all 9000 of
the Texas sex offenders cited above are released. 15 percent of those
offenders will commit new sex offenses, or 1350 offenses, based on Justice
Department statistics. Let’s assume that all of them qualify for the death
penalty (although that is unrealistic). State prosecutors will then select 10 to
20 percent of the death penalty eligible cases for prosecution. Using the
minimum 10 percent selection rate, 135 will be prosecuted for the death
penalty. Let’s assume that juries will return the death penalty in 70 of those
cases.

Those 70 cases, from arrest to execution, will cost the State of Texas $2.3
million dollars each, according to the Dallas MORNING NEWS – or, $161
million for all of them. What would then be accomplished? Those 70 repeat
sexually violent offenders would be put to death. They would never repeat
their crimes again. But that same objective could be accomplished by putting
them in prison for the rest of their lives in the highest security prison
possible at a cost of approximately $54 million, according to the MORNING
NEWS.

The remaining $100 million could be invested in reliable, cost-effective

treatment programs for other sex offenders in state prisons reducing their
likelihood of recidivism to roughly 2 percent. The current practice of
devoting an inordinate amount of the state’s criminal justice resources to one
class of offenders will only increase the likelihood that other offenders will
recidivate, many for violent crimes. Substance abuse and general
rehabilitation programs for non-sex offenders will suffer because the Texas
Legislature, as exemplified by its 2007 session, is committed to a policy of
political aggrandizement through appeasement of crime victims groups by
diverting most of its criminal justice resources to the prosecution and putting
to death less than one hundred “sexually violent offenders.”

If viable, productive treatment programs existed within the Texas

Department of Criminal Justice, the legislature could dictate mandatory
participation in these programs for first-time sex offenders. This would be
the first significant step in making sure these sex offenders do not become
repeat sexually violent offenders.

This was actually the legislative purpose of the TCCSVPA. The legislature
in 1999 said that “a civil commitment procedure for the long-term
supervision and treatment of sexually violent predators is necessary and in
the interest of the state.”

The case of Bennie Gene Green illustrates how the TCCSVPA works. On
September 17, 2001 a Harris County criminal district determined that Green
was a “sexually violent predator.” The court ordered that Green be
“committed for outpatient treatment and supervision” where he would
remain under this commitment until his “behavioral abnormality” changed
and he was no longer “likely to engage in a predatory act of sexual
violence.” The court imposed a staggering total of 50 “commitment
requirements” it felt “necessary to ensure that [Green] complies with the
treatment and supervision to protect the community.” The following are nine
mandatory statutory requirements:

• requiring the person to reside in a Texas residential facility under

contract with the council or at another location or facility approved by
the council;
• prohibiting the person's contact with a victim or potential victim of the
person;
• prohibiting the person's possession or use of alcohol, inhalants, or a
controlled substance;
• requiring the person's participation in and compliance with a specific
course of treatment;
• requiring the person to:
o submit to tracking under a particular type of tracking service
and to any other appropriate supervision; and
 o refrain from tampering with, altering, modifying, obstructing,
or manipulating the tracking equipment;
• prohibiting the person from changing the person's residence without
prior authorization from the judge and from leaving the state without
that prior authorization;
• if determined appropriate by the judge, establishing a child safety
zone in the same manner as a child safety zone is established by a
judge under Section 13B, Article 42.12, Code of Criminal Procedure, and requiring
the person to comply with requirements related to the safety zone;
• requiring the person to notify the case manager immediately but in
any event within 24 hours of any change in the person's status that
affects proper treatment and supervision, including a change in the
person's physical health or job status and including any incarceration
of the person; and
• any other requirements determined necessary by the judge.

One of the district court’s additional requirements provided that Green could
not “purchase, borrow, subscribe to, create, or possess literature, magazines,
books, pictures, videotapes, or CD-ROMs that depict pornography and/or
obscene or sexually explicit images.”

The district court informed Green that he would “likely be charged” with a
third-degree felony if he violated any of the commitment requirements.

The State, in a February 20, 2004 indictment, charged that Greene on

February 19, 2004 violated the terms of his treatment plan by possessing
child pornography. The State relied upon an “incident report” prepared by
Green’s treatment team that said “pornographic images were found in
[Green's] possession that he [had] collected for six weeks along with articles
about men molesting children.” The report further stated that Green
“admitted ... that he had fantasies regarding these images, one in which a sex
offender had impregnated a ten-year-old girl.”

Based on these findings, the treatment team recommended that Green be

arrested and terminated from treatment. The State agreed, filing its February
20 indictment. The district court subsequently imposed a 25 year sentence
agreed upon by Green and the prosecution.
With many mandatory sentencing and charging requirements imposed by the
Legislature, prosecutors and defense attorneys are forced to expend
unnecessary criminal justice resources as these case work their way through
the criminal trial process. Prosecutors are compelled to take a “heavy-
handed” approach in charging sex offense cases while defense attorneys are
virtually forced to advise their clients not to plea bargain but go to trial –
even in first offense cases.

For example, an offender is charged with a first sex offense under some
particularly mitigating circumstances. If he pleads out, even for a reduced
sentence, just “get the matter behind him,” any future sex conviction would
subject him to a possible death penalty, life without parole, or an enhanced
determinate sentence. A defense attorney now must not only advise his sex
offense client about the consequences of his immediate circumstances but
possible future consequences a sex offense conviction will impose upon
him.

The Texas Legislature has imposed greater punishments for sex offenses
than those routinely imposed for acts of terrorism and subject sex offenders
to greater restrictions on societal movement (mandatory registration, GPS
tracking, forced polygraph examination, etc.) than it requires for any other
offender.

The Polly Klaas and Jessica Lundford cases are unspeakable tragedies, but
the truth of the matter is that the Baby Graces of this world are more often
sexually abused and killed by their parents, or some other close relative or
acquaintance (like a teacher or a preacher), than by a Richard Davis. Had the
Galveston “Baby Grace” case not received so much national and
international media coverage, it would have been just another two-paragraph
newspaper story once the parents were arrested.

Politics and revenge do not make good criminal justice policies. These base
human endeavors infect our criminal trial process with what can almost be
described as a “lynch mob mentality.” As a consequence, justice and human
decency are sacrificed at the altar.

SOURCES:

• Green v. State, 219 S.W.3d 84 (Tex.App.-Houston [1st] 2006)

• Beasley v. State, 95 S.W.3d 590 (Tex.App.-Beaumont 2002)
• State v. Kennedy, 957 So.2d 757, 2005-1981 (La.5/22/07)
• Selman v. Louisiana, 428 U.S. 906 (l976)
• Coker v. Georgia, 433 U.S. 584 (1977)
• V.T.C.A., Penal Code § 12.42 - Penalties for Repeat and Habitual
Felony Offenders
• V.T.C.A., Penal Code § 19.03 – Capital Murder
• V.T.C.A., Penal Code § 21.02 Continuous Sexual Abuse of Young
Child or Children
• V.T.C.A., Penal Code § 22.021 - Aggravated Sexual Assault
• Vernon’s Ann. Texas C.C.P. Art. 37.072 – Procedure in Repeat Sex
Offender Capital Case
• Texas Health and Safety Code, §§ 841.001-147
• Texas Bill Analysis, 2007 Regular Session, House Bill 8,March 5,
2007, Texas House Research Organization, 80th Legislature, 2007
Regular Session