Crimes That Aren’t

On Friday, Lizelle Herrera, 26, was arrested by the Starr County, Texas, sheriff for committing a “self-induced abortion.” On Saturday, Frontera Fund, an abortion rights group, paid her $500,000 bail. On Sunday, Starr County District Attorney Gocha Allen Ramirez announced he will move to dismiss the indictment.

“It is my hope that with the dismissal of this case it is made clear that Ms. Herrera did not commit a criminal act under the laws of the state of Texas,” Mr. Ramirez said.

Isn’t this the sort of thing that the district attorney should have known before indicting her? What did he indict her for? How was the grand jury charged? How did it make it through arraignment, have a half million dollars bail imposed, and nobody figured out that there was no such crime?

As this was the first “crime” of its type, there was a group ready and able to post Herrera’s bail or she would have remained incarcerated for murder under a theory of prosecution that doesn’t exist and is contrary to law.

The indictment came months after the Texas Legislature passed several restrictions on abortion. But Mr. Ramirez said that “in reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.”

The Texas lege, like many state legislatures, has been busy enacting laws to address its side of the culture wars. We have a flurry of new laws, rushed laws, poorly written and even more poorly conceived, being enacted in part to bolster the politics of a side and in part to prove to the public that legislatures are doing something to protect them from the barbarians.

On the right side, there are anti-abortion laws popping up in anticipation of the Supreme Court either reversing Roe and Casey or, more likely, permitting greater restrictions on the right to an abortion. Then there are the anti-critical race theory  and “don’t say gay” laws attempting to counter woke curricula and academics using public schools to “normalize” sexual identity and orientation. On the flip side, there are legislatures like New York’s rushing a series of criminal law reforms through. Lots of laws. Lots of changes. Lots of political shifts to boldly show which team owns a legislature.

But poor Lizelle Herrera got caught in the middle. And there will be more Herreras as sheriffs arrest, prosecutors indict and judges fail to do their duty. And eventually, there will be no organizations like Frontera Fund to bail the Herreras out, to make sure they have competent counsel, to raised a stink in their name and make the public aware of it, forcing the district attorney to take the second, harder look that he should have taken before he indicted.

Stephen Vladeck, a law professor at the University of Texas at Austin, said that the district attorney’s reversal reflected what Mr. Vladeck said was a misreading of the law.

“I think what this really suggests is that this was a rash decision, by a local prosecutor who might not have fully appreciated what the law does and does not prohibit, as opposed to a piece of a broader campaign of hostility to abortion,” Mr. Vladeck said. But he added it is only a matter of time before more cases like this occur.

Vladeck is being kind. Whether the arrest and indictment of Herrera was a “misreading” or an intentional stretching of the law is unclear, but prosecutors don’t get the latitude to “misread” a law. It likely was a “rash decision,” but rash in the sense that Ramirez, the Starr County DA, found Texas’ criminal code just too hard to read and understand not to realize that he indicted someone for conduct that wasn’t criminal?  Or rash in the sense that prosecutors seize upon vagaries in law to extent them to criminalize conduct that was never meant to be criminalized.

This isn’t exactly a new problem. We’ve seen this with murder prosecutions for drunk drivers, where the crime enacted to cover their conduct was vehicular homicide, but prosecutors weren’t satisfied with the inadequately harsh consequences, so bootstrapped it into murder. Then the same was done with drugs, where the person who gave a drug to a person who died from overdose would be prosecuted for murder, by fudging the mens rea into meaninglessness.

“I think this case is also a sobering reminder of how much discretion prosecutors have — even when they’re wrong on the law,” he said. “And how difficult it is, especially for those less familiar with the system, those with fewer resources, for them to push back against prosecutorial mistakes, or overreach. And that’s a phenomenon that goes far beyond abortion.”

Smaller minds will focus on the fact that this was a sheriff and district attorney acting in a red state that has become a focal point in the abortion war. The broader view, however, is that the mechanisms at work in Texas will play out across the country, red states and blue, as laws are being enacted by legislators drunk with politics that range from vague to incoherent, and almost always with a criminal enforcement component because how else do you get people to behave as you demand or pay the fines and penalties you levy?

When a prosecutor stretches an old law beyond its frayed edges, there is usually enough time and focus for those of us who watch such exercises in excess to consider it, point out the problems and, if we’re lucky, get it on the public’s radar sufficiently for a reaction before too much damage is done.

But now we’re facing a barrage of bad laws, crazy laws, terrible and unconstitutionally vague and overbroad laws, and it will be left to prosecutors to exercise their discretion to figure out what all these new laws mean and whom they can damage by wielding them as weapons against whichever defendants they disfavor. Will there be an opportunity to save the next Herrera from being prosecuted for conduct that isn’t criminal? What about the next hundred or thousand Herreras?

7 thoughts on “Crimes That Aren’t

  1. Mike P.

    Lizelle Herrera was the beneficiary of social media winds which were blowing the opposite way than what Mr. Ramirez thought they would when he had her indicted. Similar social media winds also persuaded the judge to knock-off 100-years from truck driver Rogel Aguilera-Mederos’ prison sentence.

  2. B. McLeod

    This whole thing looks extremely bizarre, not simply with the indictment for a non-crime, but imposition of $500,000 bail for the non-crime, without any circumstances justifying that bail, even had the non-crime actually been a colorable crime. Kirby-Smithdom is sliding backward into old habits.

    1. Mike V.

      One could almost think the whole thing was organized somehow. I’ve never seen a grand jury indict someone the DA didn’t want indicted and the judge usually based bail on the DA’s recommendation.

  3. Quinn T Martindale

    This case is particularly egregious given that there’s an explicit provision in the 2003 Texas fetal homicide statute excluding the pregnant mother. There’s even recent case law from when prosecutors have tried to use the statue against fathers. State v. Hunter, 624 S.W.3d 589 (Tex. Crim. App. 2021)(concurring in denial of review) (“The State’s indictment does not charge a crime under the laws of the State of Texas, the Court of Appeals’s resolution was correct, and the correct resolution is so obvious that we need not grant review. A mother choosing to abort her unborn child is not a crime under Texas law, so the defendant cannot be guilty of the offense of solicitation for soliciting such a crime.”). As professor Vladeck said on twitter, it’s like the prosecutor just forgot the basics of the statute.

    1. SHG Post author

      So you’ve got nothing to add but can’t pass up the chance to be the asshole everybody wants to smack?

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