POSTED: Tuesday, April 2, 2013 - 8:45am
UPDATED: Tuesday, April 2, 2013 - 8:46am
AUSTIN — Some may see graffiti as public art, but under the law, it's a crime — one that lawmakers, during a committee hearing on Tuesday, will be debating how to appropriately punish.
State Reps. Joe Moody, D-El Paso, and José Menéndez, D-San Antonio, will lay out their proposals that pursue opposite means to achieve the goal of reducing damaging graffiti and preventing other crimes associated with it. Moody's bill, which is supported by criminal justice reformers, would reduce sentencing guidelines for graffiti charges and create new alternatives to prosecution. Menéndez's bill, which has been championed by law enforcement in the past, takes a tougher course, expanding potential penalties for the street crime.
House Bill 3494, by Moody, a former assistant district attorney, would allow prosecutors to dismiss graffiti charges if the defendant completes a pretrial diversion program, including paying restitution to the owner of the affected property and completing community service. Types of community service outlined in the bill include graffiti removal, mural painting and “youth mentoring in art-based programs.”
When Moody was a young prosecutor in El Paso, he said, he often dealt with low-level graffiti cases. He got the feeling that many low-level graffiti prosecutions were counterproductive."To lock a kid away for tagging something and to put him in jail — without addressing the needs of the person whose property was affected — didn't seem like a good use of the state's resources," he said.
The proposal is partially modeled after a 1984 initiative in Philadelphia, which channeled low-level offenders into the Mural Arts Program, an organization that commissioned public artworks around the city.
"This bill is not about treating this as any less of a crime," Moody said. "It’s about how to find a better situation at the end of the case."
Moody's bill would also restructure the way graffiti offenses are prosecuted, creating a new level of offense — and adjusting others. Vandalism involving less than $200 of damage would become a Class C misdemeanor, the lowest level. Moody said that the financial damage thresholds that determine the severity of a graffiti charge haven't been adjusted for inflation in the decades since they were introduced.
Supporters of the bill, including Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, a criminal justice advocacy organization, argue that it would allow courts more flexibility to deal with different types of offenders.
“It’s permissive enough to make sure that it really targets the graffitists you have, on a case-to-case basis,” she said, “while also ensuring that you address the problem of restitution to the property owner.”
Yáñez-Correa said that treating some categories of graffiti as state jail felonies is counterproductive.
“The state jail system is producing more criminals than any other kind of system in the state,” she said, noting the high recidivism rate of state jail felons.
Critics of Moody's bill, including some Texas police departments, argue that the bill would weaken communities' ability to fight urban blight.
DeAnna McQueen, former graffiti coordinator for Corpus Christi’s graffiti task force, said that allowing deferred prosecution would perpetuate the problem of graffiti.
“Experts say taggers who go unpunished will move on to bigger crimes,” she said.
In Texas, graffiti can carry stiff punishment. In 2009, Sebastian Perez, an 18-year-old Corpus Christi resident, was sentenced to eight years in state jail without the possibility of parole for three graffiti charges and possession of marijuana.
The judge was later forced to reduce Perez’s sentence, because the consecutive prison terms he ordered weren't allowed. But several months before, another Corpus Christi teenager, 19-year-old Ralph Mirabal, received an eight-year sentence and a $5,000 fine for a string of vandalism charges after he failed to abide by the terms of a plea deal.
Some in Corpus Christi, whose anti-graffiti rapid-response task force has been praised by the Criminal Justice Coalition, argue that the possibility of harsh sentences plays a crucial role in graffiti enforcement.
"At some point, you’ve got to exert your will and become tough on it. We need the tools in our toolbox to able to impact it, even if that tool is just a hammer," said Corpus Christi Police Chief Floyd Simpson.
House Bill 36, by Menéndez, would make graffiti sentencing guidelines stricter. A similar bill received support from police departments in the 2011 legislative session.
Under his bill, the lowest category of graffiti charge would become a Class A misdemeanor, and more graffiti charges could be considered as felonies.
State Rep. Joe Pickett, D-El Paso, who has been involved in graffiti cleanup in the border city since 1988 through his nonprofit, the Lee Trevino Improvement Association, said he supports Moody's bill. But he cautioned that the infrastructure may not yet exist in many places around the state to allow young offenders to do effective graffiti removal.
Pickett said any bill that relaxes sentencing guidelines would face an uphill fight in an environment where legislators want to be seen as tough on crime.
“I don’t think that this will be an easy sell to the Legislature,” he said.
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/04/02/graffiti-sentencing-reform-faces-uphill-fight/.