Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

Chuck Lindell wrote an excellent piece recently in the Austin American Statesman:“For prison inmate a "not guilty" verdict did not mean freedom; State parole system can trump a jury's verdict with its own.”

In it, he highlights one of the biggest problems with Texas’ parole system: parolees sent back to prison after being acquitted of new charges against them.

Texas criminal defense attorneys are used to this, but it shocks most folks that find themselves caught up in Texas’ parole system.

Let’s start with the legal basis for it. A “Not Guilty” verdict means that the jury has found that the State failed to prove its case beyond a reasonable doubt. While there’s no exact percentage assignable to that burden of prove, it is undoubtedly higher than the “preponderance of the evidence” standard used in parole hearings.

So let’s say theoretically that a Not Guilty verdict meant that the jury didn’t believe that the State showed them a 95% certainty that a parolee was guilty of a new offense. That doesn’t legally preclude the Parole Board from determining that he is probably, or more likely than 50% guilty of it. (Never mind for now that some juries set awfully low standards for “beyond a reasonable doubt”.) 

The Texas Court of Criminal Appeals has consistently upheld the backwards logic that allows the Parole Board to revoke acquitted and possibly actually innocent defendants. From a purely mathematical standpoint, the Court is correct that a jury verdict of not guilty doesn’t meet the necessary requirements of “collateral estoppel” and that the parolee can be revoked and sent back to prison.

But this should offend our collective notions of justice. The blogosphere has picked up this story and run with it. For other law blog commentary on this particular case see: Houston’s Clear Thinkers, TalkLeft, Eye Witness Identification Reform, Right Voices, Later On, Legal Juice, DebsWeb, All That In Our World.

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Former NPR contributor Randy Cohen’s “Ethicist” column in this Sunday’s New York Times Magazine is titled “Work Search”. In it, he answers a reader’s question about the legality and ethics of workplace searches.

While noting that employers may have a legal right to search handbags etc., Cohen offers reasons why it still may not be the best policy:

To search someone is to treat him as if he were untrustworthy, if not dishonest.

That the hospital searches everyone mitigates this baleful effect slightly, because no employee is being singled out for special scrutiny.

But to mildly humiliate many does not eradicate the sting to each.

I wish more people could understand this effect when the issue of racial profiling comes up in the context of criminal arrests.

Some still proffer the illogical “If you’re not doing anything wrong, then it shouldn’t matter” argument while debating this issue.

Putting aside the “Never mind the Fourth Amendment” problem with that attitude for now, let’s acknowledge that it creates a bigger problem than it attempts to solve.

Subjecting one group of people to even “mild” but persistent humiliation breeds a natural disrespect, then fear, then hatred of law enforcement.

It’s pretty simple really. When a Government treats its citizens with respect, it will likewise receive respect in return.

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Texas has no medical exception for possession of marijuana…but California does.

And living in the “California of Texas” – Austin – we have Whole Foods, Central Market, and of course, the “Keep Austin Weird” movement that was even featured on 60 minutes.

So I had to laugh when I read the San Francisco Gate article “Connoisseurs of Cannabis”. Subtitled appropriately “Like fine wine, growing medicinal weed has become so specialized as to inspire tastings and a new vocabulary”:

And if there is a center in the United States for this breed of maven, it is California, particularly the Bay Area.

In a region of wine and food buffs, where there is a constant quest for the best bread, cheese or olive oil, it's no wonder that marijuana, in its semi-legal status, has become a new frontier for expertise.

There are medicinal consumers who covet designer strains and varietals -- such as the one grown and harvested only by women in a remote northern county -- or who want organic products and say they can taste what soil or fertilizer was used and want to know the lineage of what they consume, as well as the expected effects.

Of course, the Federal Government is still spending your tax dollars on literally useless prosecutions.

[Hat Tip: Drug Law Blog]

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In one of my favorite moments from Da Ali G Show, an ATF bomb sniffing dog trainer is asked when one of his pups alerts how he knows that the dog isn’t saying “This one definitely ain’t got a bomb in it?”

Well, when it comes to drug-sniffing dogs, how are they trained? The answer is the same as usual… Your Tax Dollars At Work: Drug Dogs From Around the U.S. in Arkansas for Training. Ever wonder how much it costs to send 200 dogs, and goodness knows how many more police and handlers and trainers to “sniffing school” for a week?

The article quotes the Vice President of the National Narcotic Detector Dog Association several times. Apparently not smoking marijuana helps you become spokesperson for such an organization, enabling you to unleash these perfectly clear explanations on the public:

Vice President of NNDDA Keith Wilkes said, "These dogs, especially the narcotic dogs every day there's no doubt there's a big war on drugs and this is a vital tool that we must use to locate these drugs."

and

Wilkes said, "We're able to go in and get the drugs out, in which case, obviously saves kids. Can't tell you how many kids and so forth from the narcotics before they hit the street."

Yes, these do appear to be exact quotes. Verbatim. 

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Most folks probably haven’t put much time and effort into thinking about how we got where we are today in “The War on Drugs”.

I find when discussing the potential benefits of decriminalization that people often have some vague and generalized idea that “there must be some sort of reason the stuff is illegal”. Sometimes it’s unstated; but you can tell that idea is there.

Well, there is definitely a reason. Or, perhaps multiple reasons, but that doesn’t automatically make them good ones.

Check out Roshan Bliss’ guest commentary at the Purdue Exponent today, 4/20/07, “Nation’s marijuana laws were founded in bigotry”:

Early in the 1900s, Mexico's political conflicts sparked a surge of Mexican immigrants into America's southwest region. Although marijuana already existed in various forms in the U.S., the new immigrants are credited with being the first segment of the population known for marijuana use. The practice also became popular in African American culture around the same time.

The popularity of marijuana among minorities made racism a powerful tool for the opponents of marijuana. Racist politicians used hate to push anti-marijuana legislation through.

One Texas senator claimed that "all Mexicans are crazy and this stuff is what makes them crazy." A 1934 newspaper complained that "marijuana influences Negroes to look at white people in the eye, step on white men's shadows and look at white women twice."

Media sensationalism put forward blatant lies and misrepresentations of marijuana that misinformed the public and stigmatized the harmless herb.

The San Francisco Examiner went so far as to claim that "three-fourths of the crimes of violence today are committed by (marijuana users)." As a result of the pandemonium worked up by politicians and biased media about the marijuana "epidemic," marijuana was made illegal at the federal level in 1937.

Yes, there are indeed reasons that marijuana was criminalized. And the more you find out about marijuana prohibition, the more you realize it has a shameful history.

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First year law students are taught in Criminal Law that offenses usually include an “actus reus” and a “mens rea”; that is, a “bad act” combined with a “bad intent”. With only a few notable exceptions, such as traffic tickets or DWI/DUI, all criminal prosecutions require the State to prove that the defendant intentionally committed a criminal act.

Keep that in mind as we discuss Pierre’s personal story of how a trip to McDonald’s landed his friend in hot water.

Pierre’s friend had received a $5 bill in change at a parking garage. Later he and Pierre went to McDonald’s for a nutritious lunch and attempted to pay with that $5 bill. The cashier/manager marked the bill with one of those counterfeit pens, and declared it to be a fake.

After pulling another $5 out to pay, the two seat themselves in the restaurant to enjoy their meal. Meanwhile, the police are called, because that’s what happens when counterfeit money is detected.   The friend is, of course, eventually questioned by the police:

The cop walks up to our table. “Sir, do you know this is counterfeit bill?”

“Well, I do now,” my friend responds.

At this point the cop holds the bill up the lights. I must say it was a pretty well made bill. “Sir stand up.”

“OK.”

“Place your hands behind your back.”

That’s right. This person was taken into custody, and escorted by two armed police officers out of the building. To make matters worse, he was only read his Miranda Rights after requesting that the officer do so. Now, he wasn’t taken downtown, and was released after 10 minutes or so of interrogation.

So what’s the big deal? Minor interruption and the police eventually did the right thing by releasing the friend, right? Well…

Why did the policeman ask whether he knew it was counterfeit? Because, obviously, unintentionally passing counterfeit bills is not a criminal act. And there’s no other way of interpreting the statement, “Well, I do now” as anything other than “I didn’t know when I gave it to the cashier.”

Sure, the criminal mastermind might be lying to the police, and more investigation is necessary. [This same mastermind just parked himself at a table waiting for the police to arrive after being alerted that his bill hadn’t passed muster.]

But, despite making the eventual correct decision to let the kid go, what two things did the police do wrong here?

First, and most obviously, they arrested the real victim of the crime itself. Handcuffing him is an arrest in this situation, and he’s the one who is out the $5, not Mickey D’s.

Secondly, and perhaps more importantly, the questioned him after the arrest (handcuffing) presumable about the incident. Had this actually been the culprit, and had they gotten a confession, the failure to read the Miranda warnings would probably have made any statements inadmissible in court.

So, from a common sense perspective (this probably isn’t the bad guy) and from a legal perspective (better to interrogate/ask questions before an arrest) the officer’s decision making process was thoroughly flawed.  And, by the way, even ten minutes in handcuffs doesn't feel like a "minor interruption" when you are being investigated for a federal offense.

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I’ve posted before about 20 U.S.C. § 1091 entitled “Student Eligibility” and its restrictions on Federal Student Aid based on marijuana and drug convictions.

The ACLU has recently taken up the cause, filing an appeal recently of a Federal District Court's denial to have that section declared unconstitutional. From the press release:

“The law’s purpose is to impose a second criminal punishment on students who have already served their sentences, which makes it unconstitutional,” said Adam Wolf, an attorney with the ACLU Drug Law Reform Project.  “Judges must assess, not ignore, lawmakers’ intentions.  All we ask is that the court consider the evidence.”

The legal basis for the challenge is that the intent of the Act is punitive in nature – and therefore violates the Double Jeopardy clause of the U.S. Constitution. The brief does an excellent job of quoting from the Congressional Record to back the assertion that the legislative intent was indeed punitive:

“[T]oday’s bill is intended to impose some accountability on those who use controlled substances.”

Users of controlled substances “get off scot-free…[W]e can begin to send the message to illegal drug users that they are no longer immune…”

“A couple of years ago we passed a user-accountability law…Unfortunately, we wound up with provisions that allowed judges to make a decision on a case-by-case basis…”

Goodness! Judges allowed to make case by case decisions on whether a marijuana conviction should be denied student aid? How about trying to imagine what America would look like right now, if we took college degrees away from everyone that had ever experimented with marijuana. (see, e.g., the 2002 Time/CNN Poll showing 47% of Americans have used marijuana, on page 3 of this article)

The legal hurdle for the Government’s lawyers, of course, is that they must argue that the denial of student aid is not intended to be punitive, or they risk that part of the law being struck down as an unconstitutional double punishment.

Common sense tells us that it is.  And kudos to the ACLU for the good work in proving it. It will be interesting to see where this leads.

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Everybody with any interest in a criminal defense attorney’s perspective on marijuana defense in Austin should go see Charlie Roadman give his second annual Marijuana for Musicians presentation at The Mohawk on Red River at 8:00.

Quoting my own review from last year’s talk:

Charlie’s PowerPoint presentation was both humorous and informative, especially for the lay public. He started with the narrative from the infamous Matthew McConaughey naked bongo arrest, taken right from the original Police Report in that case.

He went on to explain the process that defense lawyers go through when defending someone arrested for Possession of Marijuana. Throughout the presentation were excerpts from Police Reports and other tidbits from actual clients of his, along with tips I’d call “How to make your lawyer’s job easier if you want him to get you the best possible deal”.

I hear Charlie has upped the ante this year, and added even more to the talk. And you don’t need to be a musician to be curious about what your rights are…

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Randy Barnett, currently a professor of Legal Theory at Georgetown Law, and former Cook County State’s Attorney prosecutor, writes an excellent piece in today’s Wall Street Journal “Three Cheers for Lawyers”:

The crucial importance of defense lawyers was illustrated in the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence…

Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done.

This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny.

Barnett also talks about how, as a prosecutor, he always analyzed cases from the defense perspective, in terms of the evidence, procedure, and credibility of the witnesses.

Good defense lawyers, of course, analyze their cases from the prosecutor’s perspective as well. Even though most cases end up in some form of a plea bargain agreement, even if it’s a reduction or dismissal of charges in return for community service, both sides must properly evaluate the relative strengths and weaknesses of their case.

And Barnett acknowledges the ugly truth about the criminal ‘justice’ system: that there is a human (and factually based) presumption of guilt. Since judges/prosecutors/defense attorneys know that in the end most folks are actually guilty as charged, it becomes easier for everyone to skip over the actual fact finding necessary to make such a determination:

While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.

And therefore, the continuing need for criminal defense lawyers. But it’s nice to hear it from a prosecutor’s perspective.

[Hat Tip: Philadelphia Criminal Defense Lawyer]

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Question: 14 years ago I received a deferred adjudication for a misdemeanor.

Upon completion of my one year deferred adjudication, the case was disposed/dismissed. Because I did deferred adjudication, this means I do not have a conviction on my record. And, I'm in the process of submitting a non-disclosure of criminal records, however it has not been filed yet.

I am also in the process of completing a criminal background check for a future employer and I want to answer the questions truthfully to the question. They will be doing a background check for convictions (State or county).

There are 2 questions I must answer:

1. Have you ever been convicted of a felony or misdemeanor? To which I feel I can truthfully say "No" since I was not convicted.

2. Have you ever served time, been on probation, or currently serving a deferred adjudication? To which I also believe I can answer "No" since I did not serve time, I was not on probation as that term is defined, and I am not currently on a deferred adjudication sentence.

Because I'm worried about my background check results, I've run 3 separate checks, all which came back with nothing for convictions or anything else. I've had a police officer friend run my information through the county system where I was arrested and held, and they have no history of me being processed in the system.

Please advise if my answers to the above 2 questions are accurate.  Obviously, if the question "Have you ever been arrested" was asked, I'd have to answer "Yes". 

I don't know if I should voluntarily offer the information that I was on deferred adjudication 14 years ago, since that was not specifically asked.  They may very well find an arrest record, but that was not asked and so I'm confused.

Answer: Some of this doesn’t actually lend itself to an easy answer, but I’m gonna give it a shot anyway.

For Question #1, “Have you ever been convicted of a Felony or Misdemeanor?” the answer is easy: No. Successful completion of deferred adjudication in Texas means you have not been convicted.

It’s Question #2 that becomes problematic. The part of the question that reads “been on probation, or currently serving a deferred adjudication” may imply that the employer thinks deferred adjudication is not probation. You yourself have characterized it as not probation “as that term is defined”. 

I think this is inaccurate – defendants on deferred probation in Texas are indeed covered by Article 42.12 of the Code of Criminal Procedure – the community supervision statute. (We used to formally call it probation; now it’s “community supervision”.)

And you checked in with a probation officer once a month, the same way that folks convicted and put on probation do. You were subject to random UA’s, and assigned a minimum of 24 hours of community service. You were on probation, as that term is defined. You just weren’t convicted.

The worst case scenario here is that you answer the question in the way that you believe is honest; but the prospective employer finds out about the deferred, and thinks you were intentionally lying.

Perhaps you can call the Human Resources department, if it’s a big enough company to have one, and anonymously ask how someone in your situation should answer the question.

Finally, I’m glad to see that you are applying for the Motion for Non-Disclosure, because this is the long term solution for this problem. Eventually, when that is granted, non-governmental employers won’t have access to see that you were arrested, and you won’t have to deal with this tricky situation anymore.

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The currently ongoing Conrad Black trial is the jumping off point for TIME Magazine’s recent article “The Benefits of Doubt,” which discusses the meaning of “beyond a reasonable doubt”. (Hat Tip: Anne Reed at Deliberations)

The article highlights a serious issue confronting all criminal defense practitioners: what does “beyond a reasonable doubt” really mean, and how do you convey that to a jury? Unfortunately, it is very imprecise.

…in practice, reasonable doubt may make convictions too easy. At least half a dozen studies have found that when the prosecution's case isn't airtight, juries often interpret "beyond a reasonable doubt" to mean, in effect, probably guilty.

In one study, prospective jurors said they would be willing to convict on a 60% chance that the suspect had committed the crime.

Sixty percent! And possibly as low as “more than fifty percent”, if the jury uses a “probably guilty” standard. That’s frightening.

I’ll post more soon on some effective voir dire/jury selection techniques for maximizing your chances that a jury will truly hold the government to “proof beyond all reasonable doubt”.

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I haven’t yet seen the documentary “Damage Done”, but after reading the review in the Vancouver Sun, I just might.

Of course, it sounds like it will tell me what I already know:

More than 38 years after former U.S. president Richard Nixon officially started the War on Drugs, North America now has more drugs at lower prices than ever before; police corruption is largely the result of the insanely huge amounts of money that organized crime has to spread around; just as alcohol prohibition in the U.S. in the 1920s was responsible for creating gangsters such as Al Capone, so too is drug prohibition largely responsible for allowing organized crime to flourish today; and North America's huge appetite for illegal drugs doesn't come from addicts but from occasional users.

As the article points out, however, it comes from a different perspective. Instead of listening to life long Drug Policy Reform advocates, medical marijuana advocates, and the like…

Damage Done takes a much more subversive approach by talking to police officers and justice officials, the assault troops on the front lines of the drug war. As members of Law Enforcement Against Prohibition, their story is depressingly familiar: almost without exception, they started out as true believers in the war but ended up coming to the realization that they were just part of a drug enforcement industry that thrives on keeping drugs illegal.

Their message? Our current system of drug prohibition doesn't work and needs to change.

Here’s a link to the LEAP website, for those of you unfamiliar with the organization.

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We will be hearing a great deal more over the coming days/weeks/months about Georgia Thompson, primarily because her case is now being investigated by Congress in the dismissal of US Attorneys controversy. 

But the recent appellate decision by the 7th US Court of Appeals that not only reversed her conviction, but actually acquitted her and ordered her release the same day is perhaps more notable for what it says about our criminal justice system, and how juries react to “evidence” than it is for the political fallout.

The jury convicted Ms. Thompson of 2 federal felony charges: causing misapplication of funds, and participating in a scheme to defraud the State of Wisconsin of the right to honest services, supposedly because she was involved in awarding a government contract to a company, not because they deserved it, but because she knew they had made a legal political donation to a sitting Democratic governor. In other words, for steering the contract to the company on the basis of essentially a kickback.

Now, without regard to the political motivation for the prosecution in the first place, was there even one tiny flaw with the Government’s case? Well…

No evidence, none, zip, zilch, nada to indicate that Ms. Thompson even knew that the company had donated to the governor’s campaign. Nothing. Literally nothing. (And again, it was a legal contribution.)

Listen here to approximately minute 12:30 of the oral arguments, where the State’s Attorney is asked, right off the bat:

Judge: Is your opponent correct that there is nothing in the record to indicate that the lady was aware of any contribution?

State’s Attorney: Of contributions specifically, that’s correct…

Shame on the prosecutors for bringing such a case in the first place. No evidence is no evidence, smoke and mirrors not withstanding.

Human beings know that where there’s smoke, there’s fire, and too often this concept is applied by juries in criminal cases. The general public is probably unaware of how rare it is for an appellate court to not only reverse a conviction (say, because some evidence was improperly introduced, necessitating a new trial) but to actually acquit a defendant.

Ordering her immediate release is possibly unprecedented. And even further proof that the State’s case wasn’t just weak, but truly unjust.

We have to be able to rely on juries, however, to correct such blatant errors of prosecutorial overreaching.

Our jury system may be the best thing going, but this is pretty firm proof that juries wrongly convict more often than we like to admit.

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From Scott Turow’s excellent Op-Ed piece, “Still Guilty After All These Years”, in yesterday’s New York Times:

The law has always feared the hazards of long-delayed prosecutions. The chief concern impelling limitations - that memories dim over time and that evidence is likely to become lost or dispersed - appears at first blush to be irrelevant in the face of today’s more exacting science.

If DNA can prove, within 99.9 percent certainty, that a defendant was the perpetrator of an unsolved rape, why not send him to prison? Yet what if his defense to the charge is consent?

Forensic science can often establish identity with near certainty, but it is not a time machine that can transport us backward so that we recapture every nuance of a largely forgotten event…

Statutes of limitations have also traditionally embodied a moral judgment that if a person has lived blamelessly for a significant time, he should not have the anxiety of potential prosecution hanging over him forever.

The practical reasons that Turow talks about, that is, the increased difficulty of mounting a defense for an innocent person, is important but it is the second reason that is more compelling still…

Should a man have to face charges for something he supposedly did more than 5 years before? 10? 20?

Who among us can say we’ve never “gotten away with something”?

Bearing in mind that all United States jurisdictions allow the Government a lifetime to prosecute murder, do we really need to extend the limits for prosecuting non-violent crimes?

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…instead, they sentence people to prison.

So let’s just be honest about it, and start calling it the “War on Drug Users”, OK?

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I have been reading your blog and The Wretched of the Earth's (by Poverty Lawyer 1) blog and I find both blogs very informative, easy to understand, and written by competent and organized minds!  You have both had articles that taught me things about my case that I need to be concerned about.  (Thank you for the complement.)

Summary of My Questions:

1) I got arrested for DWLS recently.  I want this arrest, fingerprints, mugshots, etc. removed from all government databases.  Does License Suspensions and Revocations Article 55.06--Texas Code of Criminal Procedure mean that there is no way for me to get this expunged, no matter what happens? 

No. If you are acquitted, or your case is dismissed you will be entitled to expunge the arrest. (Since jury trials in DWLS cases are extremely rare, it’s more likely that the case would be reduced to a Class C traffic ticket, e.g. for whatever you were stopped for in the first place, or that the case would be dismissed outright, say in return for getting your license back in order, than to be acquitted.)

The section you are reading applies to folks who have their license suspended for DWI through the ALR process, but then have their criminal DWI case dismissed. In that scenario, the law allows you to erase the DWI arrest, but not the license suspension from your record.

2) If it is possible to get an expunction, how do I do it?

Assuming you qualify, you will need to file a petition to expunge the arrest and include all the government agencies that have those records in your petition. There are, of course, more steps after that. Frankly, you really need a lawyer to do this correctly. I’ll ask you to believe me, despite my possible “hire a lawyer” bias.
 
3) If I get a dismissal, I don't want any possibility that the case can be refiled.  Is there any way to ensure that?  Like by asking for a dismissal with prejudice?

Dismissals granted during the initial two year statute of limitations for misdemeanors are rarely granted “with prejudice”, meaning in theory the State is free to refile them. However, dismissals in most criminal cases are going to be by way of negotiated agreement. Therefore, the State rarely refiles cases that they have agreed to dismiss.

BACKGROUND: I was arrested in Travis County recently for Driving While License Suspended.  I would guess you are familiar with this growing problem where people get convicted of not having insurance, then don't get the notice of the DPS surcharge, therefore don't pay it, and are suddenly arrested for DWLS.  That's exactly what happened to me.  There are more details that make this situation more of an injustice, but I will leave them out since I don't think they are relevant to my questions.

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Wayne Schiess, director of Legal Writing at the University of Texas Law School (as well as my teacher when I was there) has been blogging about some common sense plain English language revisions for jury instructions in Texas court rooms. I whole heartedly applaud any efforts we can make to turn “what the judge tells the jury about the law” into “something that reasonable people can understand”.

Who knows how many cases have mistakenly turned because a jury misunderstood the legal mumbo jumbo that is now quite frequently given to them?

I also agree with Schiess when he writes:

It's easy to poke fun at archaic jury instructions. Harder to rewrite them…

Read Schiess’ latest blog entries for some concrete examples of poorly worded instructions (as well as his efforts to come up with some well needed reform language).

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Jordan Smith, author of the column Reefer Madness, writes an excellent piece in this week’s Austin Chronicle about Texas’ unreasonable parole system, and a pending lawsuit that seeks to change it.

The actual parole rate for Texas non-violent inmates is substantially lower than the “recommended” rate. Translation? Folks convicted of felony offenses in Texas are serving higher and higher percentages of their sentences, even when they accumulate substantial good-time credit. Many serve their full sentence, despite all of their “good-time credit”.

“Mandatory Release”, which is what it is still called, has not been mandatory since 1996. Mandatory Release on parole used to happen when an inmate’s good time credit, plus his actual time served equaled his sentence.

A plain English typical example: hypothetical defendant is sentenced to 4 years prison for possession of 2 grams of cocaine. After 2 real years in prison, the inmate has accrued 2 years of good conduct time as well (meaning he has not violated any prison rules, has participated in vocational programs etc.)

His total time then would be 2 real years + 2 good time credit years, for a total of 4 years. Under the pre-1996 laws, he would be released on parole automatically (assuming he hadn’t previously qualified for parole). He would still have to serve 2 more years of supervision, report to a parole officer, be subject to drug testing, participate in aftercare, etc. But he would be released – and thus cost the taxpayers a lot less money as well.

Under the current system, however, mandatory release is discretionary. That’s right. Mandatory = discretionary.

Smith quotes parole attorney Bill Habern on the current state of Texas Parole law:

“I’ve never seen such a dysfunctional system as exists in Texas” – a system that allows the parole board to become a “bully.” “They’ve been bullies so long that they’re just used to it.”

But it’s not the individual members that are the problem, he says; it’s the system they work under.

“It’s not the members of the team playing on the field,” that slant things, he says. “It’s the field,” that’s slanted.

And remember, we’re not talking murder, robbery, sexual assault here. Those offenses were never eligible for mandatory release under the old rules. We’re talking primarily about drug possession cases.

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There is (justifiably) much talk in the blogosphere these days about how the firing fiasco scandal is effecting the “image” of the Department of Justice. But there’s really more to this than partisan political shenanigans. (Again, I don’t mean to downplay the importance of it; I’m just trying to talk about a bigger overall issue.)

Michael Powell’s New York Times article “J’accuse!,” addresses the problems that the 1980s federal sentencing “reforms” brought: namely, a sever lack of prosecutorial discretion. He quotes Professor Bruce Green, a former assistant federal prosecutor in New York and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law:

“There never used to be an imperative to bring the harshest charges or a particular sentence, and that meant a prosecutor could craft his own philosophy,” Mr. Green said. “Now you are instructed to bring the harshest charges, and seek the harshest sentence and that imposes a superficial consistency while demeaning a prosecutor’s real power.”

As stated in the Texas Code of Criminal Procedure, Article 2.01:

It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.

When the executive branch, be it the president for federal criminal law, or the governor for state criminal law, instructs its prosecutors to always seek the highest charge, and the highest penalty possible, they strip from a prosecutor their only real implement of justice: discretion.

(And, of course, they hit the taxpayer in the wallet, and guarantee jail and prison overcrowding.)

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