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

Houston defense lawyer Mark Bennett bemoans other lawyers reacting to this story before he can:

Lots of folks had something to say about this:

Grits, Dallas Criminal Defense Lawyer Robert Guest, Fort Worth criminal defense lawyer Shawn Matlock, Connecticut public defender Gideon, and New York criminal defense lawyer Scott Greenfield.

Ordinarily you would think that by the time the Connecticut and New York bloggers got to a Texas topic it would be as dead as Eight Belles and not in need of further flogging.

But the two Gs are on top of things, so their posts never scare me off. I though of an angle — how are the prosecutors on the TDCAA forums reacting? — only to find that Wise County, Texas criminal defense lawyer Barry Green had beaten me to it. Bryan, Texas criminal defense lawyer Stephen Gustitis went there, too.

[Boy, if that wasn’t the cheesiest way to link to a bunch of folks without doing any real work myself…]

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A Harris County Lawyer continues her (his?) excellent series on the inner workings of the District Attorney’s Office in Houston with “The Capital Murder Decision” which takes us through the process used to determine whether or not to seek the death penalty:

Harris County has long been synonymous with being the "Death Penalty Capital of the World" and it has always been pretty much the center of every debate on capital punishment since the 1970s.

Good opening – I’m glad to not have to debate that point, but let’s throw in some facts and figures just to prove that the nickname is more than well deserved, it’s literally true. If Harris County were a State, it would rank second to Texas and ahead of current number two Virginia in number of inmates executed since 1982, when Texas reinstated the death penalty.

One portion of the decision making process?

If a Defendant has priors, the prosecutor won't just order the Judgment and Sentence reflecting the conviction. They will order the offense report, the old file, and everything else that they possibly can to understand what happened on the prior offense.

Reading offense reports of priors is certainly appropriate. But let’s not forget the number one rule of offense reports: The police put in all the bad facts, and leave out anything mitigating or exculpatory. So if you want the worst possible take on an offense? Read the police report – several times preferably.

They often pull the Defendant's school records if he is young. They will talk to the victim's family members and discuss their feelings about the case.

Victim’s family members are rarely going to oppose the death penalty in a murder case. I hope I would – but frankly, I’m not sure. Actually, I think I’d want to kill the S.O.B. myself, but I wouldn’t want the government to do it. And I’m against the death penalty.

They will look at the offense itself and decide how bad the facts of the case-in-chief are. Sadly, in this day and age, a capital murder during a convenience store robbery doesn't really "shock the conscience" like it used to.

Now we get to the thesis of AHCL’s post. Harris County only asks jurors to execute in cases where the murder shocks the conscience.

But that still doesn’t come close to answering the question of why Harris County’s death penalty rate is so high. And it’s high – I should say the highest and by a long shot - by any metric: total executions, percentage of murder convictions where a sentence of death is imposed, number of capital cases indicted, etc. It’s the percentages of death sentences to murders that begs the next question:

Why are the consciences of Harris County prosecutors/jurors so easily shocked – compared to every other geographical region in the country with statistically significantly lower death penalty rates?

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TigerHawk tells us that by receiving only a 3 year sentence Wesley Snipes got off easy:

And for my fellow libertarian conservatives who are offended, I offer the friendly reminder that Pete Rose served five months in federal prison for defaulting on approximately 2% of the taxes and penalties owed by Wesley Snipes.

Considering that federal sentencing guidelines -- which law-and-order conservatives loudly champion as the remedy for "soft judges" -- for other white collar offenses have massively increased jail time for purely monetary crimes (many of which have much more ambiguous evidentiary and legal standards than rank tax evasion), three years seems incredibly light.

TH concedes that white-collar sentencing has “gone completely overboard” but says that by recent standards Snipes would have gotten ten years if he were some CEO.

Actually, anyone convicted of the same thing as Snipes would have gotten 36 months or less. Three years - that is, a maximum sentence of 1 year for each misdemeanor conviction, then stacked or run consecutively – is the most that Snipes or anyone else similarly situated could have received. 

The maximum sentence was a likely result here, because once the ‘appropriate’ punishment for the acquitted conduct was factored in, Snipes was theoretically way over the guidelines for the maximum.

But it’s hard to see where one can argue that the max and getting off easy – for misdemeanors again mind you – are even close to the same logical ballpark.

As for the analogy to Pete Rose’s situation, he probably received some sort of downward departure for acceptance of responsibility and pleading guilty. And his sentences – yes, plural – all ran concurrently. But let’s ignore that.

Is the 2% figure supposed to mean that Snipes should have gotten a sentence 50 times longer than Rose? 250 months? Almost 21 years? If we start following that logic, we’ll lead the world in incarceration rates.

UPDATE.  I should have read the comments before publishing. Here’s part of one:

Snipes is a sh*tty actor and criminal. He deserves the long arm of the law.

Begs the question: Should Al Pacino get a lower sentence than Steven Seagal if they were both caught cheating for roughly the same amount of taxes? And do we count total number of Oscar nominations, or just wins when it comes to lesser punishment?

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Maybe it’s because I’m a new parent, but I’m starting to become more interested in the topic of criminalizing normal child behavior.

Ron’s Insanity is starting a collection of Crazy School Stories:

I've got a file on crazy school stories. Now these are the ones that make the newspaper and often tend to be quite egregious. These are stories like strip searching a 13 year old girl over Motrin or suspending a kid over eating at lunch with a steak knife.

However, I'm frankly surprised and shocked at the number of people who have school "horror" stories…

Since I'm already getting active lobbying my local school board and since I've decided that it's time to start taking this to the Texas Legislature, I want to have as many stories as possible to shock our lawmakers into putting an end to some of this insanity.

Ron’s asking for emails, so if you have actual experiences to relate, head over there and help out.

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Everyone gets treated like the Worst-of-the-Worst.

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Annonymous commenter on Doug Berman’s post “The safety valve solution to mandatory minimums”:

Isn’t part, and an important part, of the real story behind the motivation of law enforcement figures who so obdurately support mandatory minimums is that it increases their ability to coerce plea bargains?

Seemingly absent from the discussion is the fact that law enforcement supports and indeed requests massively below guideline sentences for its pleader-cooperators. The response that this is a statutory-based departure based on cooperation doesn’t seem particularly compelling given that in so many plea bargains a large down-departure is built into the deal by the prosecutors dropping many charges before settling on the claim(s) to be plead.

This disparity that law enforcement can count on, between the mandatory sentences and what pleaders can expect, gives their already monstrous-plea bargaining power some serious additional oomph.

Bingo.

And to be fair, not all law enforcement supports mandatory minimums.

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Reading Rob La Gatta’s Q&A with Houston Chronicle blogger Mary Flood made me skim her “criminal law” archives, and tada, I had just plain missed this nugget.

Now I’ve been thinking for a while about starting an archive tag called “Your Tax Dollars At Work”. (And, no, it won’t just be identical to every single War on Drugs post – although, it could be.) Just hadn’t gotten around to it, frankly.

But this story is the final straw. From the blog post titled “Stopping people leaving the US to detain & deport them”:

On the one hand -- it seems wasteful for our government to be pulling people off planes at Bush Intercontinental to pay to detain them, prosecute them and then to send them exactly where they were already going.

But the government says these folks have all been deported before and they need the felony conviction to take the law seriously, and hopefully not return here illegally again.

Houston-based federal public defenders say it's a colossal waste of time and taxpayers money to pay the nearly $70 a day for several months to hold these people, prosecute them for entering the U.S. illegally and pay to send them where they were already headed.

``What's silly about this is that they are on their way home. They have gotten the message that they shouldn't be here,'' said Houston's U.S. Federal Public Defender Marjorie Meyers. ``It's not cost-effective.''

But Houston's U.S. Attorney Don DeGabrielle notes the people they are prosecuting are repeat violators of U.S. immigration laws and that it's not only necessary but efficient to stop them and prosecute them.

``We had already expended some time, effort and money before to institute deportation,'' said DeGabrielle. He said to allow these people to come back into the country without proper permission and then just let them leave would minimize what the government is trying to accomplish. ``We feel it's definitely worth the resources to hold these people accountable,'' DeGabrielle said. [Emphasis Added]

OK. ‘Illegal reentry’ is a prosecutable federal offense - I get that. Like many offenses, the punishment range is arguably over criminalized, but it is a crime. A federal crime.

But, um, how do I put this? From the emboldened section in the snippet, the official position seems to be: We’ve already spent some of your hard earned tax dollars. Quick, let’s spend some more… before it’s too late and we never get the chance.

Ladies and Gentlemen… welcome to the newest section of Austin Criminal Defense Lawyer: “Your Tax Dollars At Work”. I’ll try to spend some time going back and retagging previous appropriate posts.

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Houston criminal defense lawyer Randall Kallinen posted the link to this story on the newly formed Texas defense lawyers listserv:

Omaha, Nebraska (KMTV) - A 10-year-old Nebraska girl is slowly losing her life to brain cancer. She has one wish will put her to ease: to see her dad. But it may not happen.

The little girl's name is Jayci Yaeger.

"The tumors are growing and hemorrhaging and right now nothing there's nothing they can do for here, just keep her comfortable," says Vonda Yaeger, Jayci's mother.

Cancerous brain tumors have taken over, and Jayci moved into a Lincoln, Nebraska hospice center this week. Her mother can only watch as her daughter slowly disappears--a girl who just six months ago was vibrant and energetic.

"She needs to be where she can be peaceful and happy and not in pain," says Vonda.

However, Jayci isn't ready to go just yet. She's got one more thing to do before she dies. Hug her daddy.

"She's very scared," says Vonda. "I think she's holding on for her father."

The thing is, Jason Yaeger is sitting in a federal minimum security prison camp in South Dakota serving five and a half years for a drug conviction. He's got one year left.

Jason and the Yaeger family have appealed many times to the warden for a 30-day supervised release. He's been denied, and they say the prison tells them the circumstances are not "extraordinary."

Jason is scheduled to be released to a local halfway house in August, but doctors and her family believe by then it will be too late. Now, they're just waiting, hoping something will change.

A quick skimming of the comments section, and I only totaled 3 out of 98 comments - so far - that were of the “DO THE TIME DO THE CRIME” variety. (Sorry for all the caps, readers, but I thought it was appropriate even while paraphrasing to keep the anonymous idiot internet commenter code of always yelling.)

So, does that mean there’s roughly three percent of the population that wants to hammer your client on a drug case, and ninety seven percent that are at least capable of compassion for a non violent offense? In Texas, where we have the option of jury punishment, even for the slam dunk guilty defendants, it’s something to think about…

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The Times article about the recent Pew report (1 in 100 U.S. Adults Now in Prison) has lit up the blogosphere. I’ve been thinking about commenting on the story, but really, it’s just more of the same. True, hitting the 1% mark is something of a - what’s the word I’m looking for here – milestone? But we’ve been moving in this direction for sometime.

This paragraph in the article jumped out at me:

The report’s methodology differed from that used by the Justice Department, which calculates the incarceration rate by using the total population rather than the adult population as the denominator. Using the department’s methodology, about one in 130 Americans is behind bars.

Is the Justice Department is trying to downplay the most sensible way of reporting this information? Hey – I’m going to include American dogs and cats as well as babies and children… that way we can claim an incarceration rate of one in 250. Sounds a lot less extreme, doesn’t it?

Obviously, the War on Drug Users is the main culprit.

Other Blogs/Same Story

From Addiction Inbox:

The Pew study reveals that addiction is as firmly criminalized as ever. The compressed essence of the war on drugs is simply to put as many people in jail as possible. Obviously, long prison terms will not cure addicts of their condition, any more than long prison terms for diabetics would cure that condition.

From (Austin prosecutor) Steanso:

Personally, I'm all for treatment and rehab services for nonviolent drug offenders, and I'd like to see nonviolent offenders with mental health problems diverted into treatment as well. Aside from the fact that I think these solutions are more humane than simply locking people up, I think that overall, in the long run, treatment solutions are probably more cost effective than having to repeatedly deal with these people over and over in the justice system.

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The Austin Obama ’08 campaign called me tonight to tell me they had moved tomorrow’s Town Hall Meeting to a bigger room in the Austin Convention Center, and, more importantly, that they had 2 tickets for me. I was on the waiting list after being turned down for tickets this afternoon. Realistically, I thought there was no chance.

The friendly folks at Obama headquarters seemed unsure of how attendees would be allowed to submit questions, but I thought I’d get a head start, and take some typed out already, in the hopes that would increase my chances of actually getting to address him.

I was originally thinking about asking him whether he would consider using the bully pulpit of the presidency to speak out against lengthy – as in decades long – sentences for low level drug offenders.

I looked at the tickets, however, and noticed that they say: A Town Hall Meeting to discuss strengthening America’s Economy. So I figure I need to at least tilt any proposed question to the economy. I suppose I could ask whether he would consider using the bully pulpit of the presidency to educate the American people about how much incarcerating folks is costing them in tax dollars, but I’m not sure they would select that. Yes, I’m bucking for a good question, but also one I think they will ‘like’.

Basically, I’m asking for suggestions, and here’s what I’ve got planned so far. I got the basic premise of the question from my wife. (The initial sycophancy is my idea.)

Senator Obama:

I’m a criminal defense attorney here in Texas, and I’m an admirer of the legislation you spearheaded in Illinois to help ensure that innocent people not be given the death penalty. Since this meeting is about economics, could you talk a little about how expensive death penalty litigation by the State is, and whether or not America as a whole might consider abandoning it entirely?

I’ve got to work on that, I know. Feel free to comment, and help me tweak it. Or suggest something entirely different – but I would like to focus on criminal defense, and I think the topic of the meeting means I need to focus on the economic aspects of some of this too.

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Grits asks, “Would you confess to a crime you didn’t commit to save your life?” and notes that in Austin, Texas in 1988 Christopher Ochoa did exactly that – then plead to a life sentence and testified against his ‘friend’ Richard Danzinger, who also happened to be innocent. (Danzinger’s jury took 8 minutes to sentence him to life as well. Unfortunately, after several suicide attempts but before eventual exoneration, he was beaten within an inch of his life in prison and suffered tremendous injuries.)

Noting an article profiling now practicing criminal defense lawyer Ochoa in today’s Dallas Morning News, Grits points out that Doug Berman of Sentencing Law and Policy has previously praised the death penalty as en effective plea bargaining tool for law enforcement and prosecutors:

Doc Berman over at the Sentencing Law and Policy blogs says the death penalty is an "effective plea bargaining tool," but to me here's an example of what he means in practice. If you threaten to kill somebody, they may admit to anything, but I'm not sure that's so "effective" as it just makes wrongful confessions more likely.

Holy cow. How could I have missed that one of my favorite bloggers was so off the mark? Here’s a clip from Berman’s original post on the subject, “Another example of the death penalty as an effective plea bargaining tool”:

It seems fair to assume that the federal government would not have been able to secure this plea deal were it not for the threat of the death penalty.  (Other high profile cases with similar "death-defying" plea bargains include the Unibomber and the Green River Killer.)  Though many might debate whether justice has been served by this plea deal, no one can question whether justice was efficient.

Berman is referencing a 2007 plea deal between a ‘drug kingpin’ and the Feds, where the defendant plead to life to avoid the death penalty. And I’m not sure what he meant by debate about “whether justice has been served by this plea deal”. Maybe he meant justice for this crime cried out for the death penalty, and therefore some could be unhappy with it.

But to the extent that the phrase questions the accuracy of the conviction, this logic makes no sense to me at all. Threatening to kill someone if they don’t [fill-in-the-blank] is very likely to produce, well, to produce [fill-in-the-blank]. And if achieving [fill-in-the-blank] is of the utmost importance, than threatening to kill someone to achieve it is likely to be an extremely efficient way of doing just that.

The problem with this logic however, is that while in this scenario you can fill in the blank with the concept of ‘convicting someone of this crime,’ you can not fill in the blank with the concept of ‘convicting the right person of this crime’. More specifically, you can only convict the person you threaten with the death penalty; you do nothing to make certain that you threaten the right person.

Efficiency is the wrong measure of any prosecution. Certainly accuracy should be the hallmark of any capital case. I’m pretty sure the Spanish Inquisition got high marks for efficiency when it came to extracting confessions.

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From Wednesday’s Austin American Statesman, Sheriff defends allowing immigration officials to have office at jail:

Travis County Sheriff Greg Hamilton encountered sharp criticism and a smattering of support Tuesday for his decision to allow federal immigration agents to establish an office at the Travis County Jail.

At two public forums, Hamilton defended the decision, saying the sheriff's office is simply allowing U.S. Immigration and Customs Enforcement to use a side office in a jail in which its agents have been working for 30 years. He denied the charge that the sheriff's office is enforcing federal immigration law or facilitating racial profiling.

"I take offense to (critics) saying we're racial profiling," Hamilton said. "This is a public safety issue."

There are several issues in play here, but the one that interests me the most is this: how does the Travis County Jail (or I should say Sheriff’s Office) make the initial determination that someone is – or may be – an illegal immigrant?

As I’ve pointed out before, criminal defense lawyers in Austin as a group have probably all had the occasional experience where their client has an INS hold on them, even though they are an United States citizen because of their last name.

Surname profiling (i.e., a ‘hispanic’ surname leading to an INS hold) is a more accurate phrase perhaps than racial profiling, but it is unacceptable. Period.

I don’t care if it only takes a few hours, or a few days to ‘clear up the problem’ and release the hold. Any extra time incarcerated because a law enforcement agency thinks you might be here illegally is unconstitutional.

One last thing: the great thing about taking this angle on the argument is that you can bypass all the idiotic arguments made on the other side, for different reasons. I feel certain that the super majority of the public in Austin would be horrified to know that such a thing can happen – and would oppose ICE moving into the jail, on this basis alone.

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Reasons to keep a prison open...

From a New York Times article about possible closings of prisons:

On Jan. 11, the Spitzer administration announced plans to close Camp Gabriels, two other corrections camps and a medium-security prison, all of which have been operating below capacity since 1996 because of a decline in the number of nonviolent felons, the state’s corrections commissioner, Brian Fischer, said.

Closing those prisons, Mr. Fischer said, would save the state millions of dollars, free up money for the treatment of sex offenders and mentally ill inmates, and finance programs like anger management and vocational training, meant to prepare prisoners for their release.

Boils down to saving money, because there has been a decline in nonviolent felons. Wait, those are reasons to celebrate closing a prison. That’s actually the best reason: it’s not needed.

But the name of the article is “Plan to Close Prisons Stirs Anxiety in Rural Towns”. So what are the reasons to keep it open?

As rural economies across the country crumbled in the 1980s and the population of prison inmates swelled, largely because of tougher drug laws, states pushed prison construction as an economic escape route of sorts. Throughout the 1960s and ’70s, an average of four prisons were built each year in rural America; the rate quadrupled in the 1980s and reached 24 a year in the 1990s, according to the federal Agriculture Department’s economic research service.

The boom, experts say, provided employment, but it also fostered a cycle of dependency. Depressed rural communities came to rely on the prisons as a source of jobs, economic sustenance and services, with little effort devoted to attracting other viable businesses.

It’s the economy, stupid. Maybe longer prison sentences for drug offenses? Could that cure our current economic woes?

We don’t want to put all those guards out of a job.

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The Austin Criminal Defense Lawyers Association listserv has been buzzing the last week or so. Local defense attorneys had noticed a much higher rate of immigration holds being placed on clients. Was this a trend?

And today, the Austin American Statesman brings us the answer, “Sheriff to let federal immigration agents set up office in jail. Agents will look for undocumented immigrants.”

Travis County Sheriff Greg Hamilton has agreed to let federal immigration agents set up an office in the county jail to more often monitor whether inmates booked into the downtown facility are legally in the United States.

Hamilton said this week that agents from the U.S. Immigration and Customs Enforcement agency will likely be stationed in the jail 24 hours a day, seven days a week in coming months. They began increasing their presence in the facility late last year.

Until recently, federal officials said agents only occasionally visited the jail to check the immigration status among inmates but sought more access from Hamilton.

The increased presence has led agents to double — if not triple — the number of "immigration holds" it has traditionally placed on Travis County inmates for possible deportation, said Adrian Ramirez, assistant field office director for the San Antonio office of the federal immigration agency, whose region includes Austin.

Immigration and Customs Enforcement, aka ICE, will indeed be moving into the Travis County Jail. 

Whichever way you feel about the new policy, this line in the article jumped out at me:

Agents may place an immigration detainer on the inmates if they suspect they are undocumented immigrants. [Emphasis added]

I’ll bet I’m not the only criminal lawyer in Austin that knows what “suspect they are undocumented” means. It means ‘having the wrong name’.

This isn’t some sort of wild accusation either. I’ve seen federal INS detainers placed on United States citizens. Combining the first names Juan, Jose, Miguel, Manuel, etc. with the last names Diaz, Lopez, Hernandez, Rodriguez, etc. is the most likely way for ICE to ‘suspect’ someone may be undocumented.

Oh, and by the way, how long does it take to remove an unlawful INS detainer from a U.S. citizen? Several extra days in jail, at least. Sometimes longer.

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From today’s New York Times piece “Putting a Price on a Wrongful Conviction”:

William Gregory and David Pope were both convicted of rape. Mr. Gregory served seven years in a Kentucky prison and Mr. Pope was imprisoned by Texas for 15 years before being released because of new DNA evidence.

Mr. Gregory, 59, now lives at the edge of a golf course, in a five-bedroom house he bought with part of the $4.6 million he received in legal settlements. Mr. Pope, 46, received $385,000 from the State of Texas.

To the extent that they got money, they are among the lucky ones. Of the more than 200 people released from prison since 1989 on the basis of new DNA evidence, 38 percent have received nothing for the years they spent behind bars.

I’m not sure if Gregory was able to sue or settle with other civil defendants besides the city of Louisville, Kentucky, but it looks like that case actually settled for $3.9 million.

But why the difference in the two settlement amounts? Pope was jailed more than twice as long as Gregory.

Apparently the city of Louisville felt Gregory could make a case that there had been bad faith or intentional misconduct in his prosecution, didn’t want to take the risk of trial and settled. Pope must not have been as ‘fortunate’.

The article asks “What are those years worth?” Ultimately, the question is unanswerable. And some politicians believe that gives the State an opening to deny compensation altogether:

“Once you open up those floodgates, where do you get all the money to pay for these falsely charged people?” asked state Rep. Thomas R. Caltagirone of Pennsylvania, co-chairman of that state’s House Judiciary Committee, where a compensation bill recently stalled. “How much money is it going to require? How much is a person worth?”

Good point. We can’t accurately say how much time in prison for a crime you didn’t commit is worth, and anything resembling a fair settlement will come out of the taxpayers’ pocket… so, the answer is: give them nothing.

Or perhaps, if we had a system where jurors knew that convicting the innocent could mean a few dollars out of their pocket, we wouldn’t have as big a problem in the first place.

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From today’s New York Times article “Rules Lower Prison Terms in Sentences for Crack”:

Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday.

The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years.

The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines.

Given that we’re talking about subtracting one year from the ‘normal’ decade in prison for a federal drug offense, it would make sense to replace the phrase “more lenient” with “less outrageous” in that first sentence. Still, this is a small step in the right direction.

Solomon Moore’s article also touches on the issue of whether or not federal prisoners sentenced under the old guidelines will be able to take advantage of the new rules. In other words, since the U.S. Sentencing Commission has decided that sentences were too long and need to be reduced, will it do you any good if you have already been sentenced unfairly/unreasonably?

The predictable response from the D.O.J. on this issue:

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy.

“The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”

Wrong, wrong, and, well, at the end of that statement we see the real reason they oppose it.

First, it won’t erode federal drug enforcement efforts… it will be part of the basis of those efforts.

Second, it doesn’t ‘undermine Congress’s role in creating sentencing policy’. The United States Sentencing Commission was set up by Congress. The USSC was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984.

You can make a great argument that Congress did a terrible job when it passed those ‘reforms’; but you can’t say it wasn’t the Congress that did it.

Finally, what does D.O.J. mean when it says this will ‘impose an unreasonable burden upon our judicial system’?  Deciphering this will lead us to the real reason D.O.J. opposes making the new guidelines retroactive.

Basically the Federal prosecutor’s office is admitting that it’s too lazy to get things right. Yes, it may average out to ‘only a year’ reduction for those twenty thousand or so that are still incarcerated under the old rules, but each and every one of them has plenty of time to apply to reduce their sentence, and they will do so.

Gosh, that’s just too much work for the Department of ‘Justice’.

Even this argument fails though – I mean, it fails because it has no basis in fact, not just that it’s mean spirited and motivated by sloth. As Denise Cardman, Deputy Director of the American Bar Association wrote:

If the amendment is not made retroactive, the courts will likely be inundated with a large number of pro se filings using various vehicles, such as 28 U.S.C. §§ 2241, 2255, once the amendment goes into effect.  

The same number of motions filed under Section 3582(c) would be a far more orderly and effective manner of managing the inevitable requests for relief, creating “cleaner” and more uniform decisions. 

Indeed, 18 U.S.C. § 3582(c)(2) provides that the court may reduce the term of imprisonment “on its own motion.” Under this provision, a court could enter a blanket order reducing all sentences imposed under the former guideline. 

Moreover, post-Booker practice demonstrates that the federal criminal justice system is fully capable of revisiting many thousands of sentences when justice so requires.

A blanket order reducing all sentences retroactively will indeed be a much better use of judicial resources than, say, twenty thousand or so pro-se motions.

And, it has the added benefit of… being the right thing to do.

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There’s been some poorly reasoned counter-arguments bandied about the blogosphere regarding the push to have Sharon ‘Killer’ Keller sanctioned, impeached and/or disbarred for her refusal to keep the Texas Court of Criminal Appeals open an extra 20 minutes so that a request to stay an execution could be filed.

The argument boils down to this: the lawyers shouldn’t have waited until 5 o’clock to file their appeal – period, end of story. I responded before, in part, to this by writing:

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

Houston criminal defense lawyer Mark Bennett has written extensively on this subject as well:

Death penalty enthusiasts are chortling about Judge Sharon Keller's action in closing the courthouse doors to Mr. Richard. A common theme among their responses is "blame the lawyers." One [anonymous] sample, in comments to my first post on the subject:

Why didn't the lawyers who needed to file do so BEFORE the court closed????? That is the most ridiculous thing I have ever heard. She closed on time, so you're filing a lawsuit against her?

HELLO???? Is anyone out there?????

Apparently not. Get real. You're supposedly fighting for a man's life and are running 20 minutes late? What a JOKE!!!!!!!!

Here's Houston criminal defense lawyer Troy McKinney's (an HCCLA past president and, more importantly, my attorney) reply to the argument that Keller was just following the rules, from comments on today's Houston Chronicle editorial calling for Keller's ouster:

The Supreme Court of the United States did not grant certiorari on the case involving the chemicals used in the death solution until that day. There were not days and weeks to prepare. There was less than one full day. As I understand it, it took until afternoon to get the materials that were used to obtain the review in DC and then the rest of the afternoon to draft the materials for the Court of Criminal Appeals. Although the Texas Supreme Court allows email or fax filing of emergency matters, Judge Keller also refused to allow the petition and motion to be filed by fax or email. The court even refused to allow a single copy to be filed immediately and the remaining 11 required copies (of the several hundred page document) to be filed shortly thereafter. At 5:20 p.m., when it was ready to file, the doors to the clerk’s office were locked so there was no way to get it to the people at the court (including in the clerk's office) who were still at the court.

Never before has the Texas Court of Criminal Appeals not been available on the day, evening, or night of an execution to accept whatever, if anything, was to be filed -- unless they were told in advance that nothing would be filed. Of course, here, Judge Keller through the clerk and staff was told that something would be filed and she made a conscious decision not to allow it be by closing the court and making the clerk's office unavailable.

The decisions made by Presiding Judge Keller are inexcusable.

The Harris County Criminal Lawyers Association is also filing a complaint with the Judicial Conduct Commission. There will be over 100 local lawyers who sign it.

I hope it’s clear from my previous posts where I stand on Judge Killer – on this issue as well as others. But let me make 2 points here.

#1) I still think it’s possible to argue that Michael Richard’s lawyers could have been more prepared. Yes, cert was granted that day, but the Supreme Court doesn’t just grant cert out of the blue. This case had been pending for awhile, including of course the request for cert. 

Lawyers should be up to date on the types of cases they are handling, whether initially before the trial stage, or in the post conviction/extraordinary remedy situation. Having said that, this was a pretty unusual situation, and I should have made it clearer that I’m not criticizing the lawyers in this particular case. My comments were meant partly as general advice – and were more specifically labeled as the one / one millionth of one percent of what was defensible of Judge Killer’s quote about her decision.

I’m no stranger myself to paranoia about missing deadlines, and I try to have several levels of safeguards in place to ensure that doesn’t happen. 

But, and this is the biggie…

#2) If it really really had been the fault of the lawyer, then the execution is even more – not less – inexcusable.

So, if as they claim the ‘lawyer should have known better,’ the pro-death penalty argument is truly senseless.

If you believe that the lawyer was the one to blame – rather than say a corrupt, lazy and intellectually dishonest judge – well…

Should the client DIE because his lawyer screwed up?

Is that what passes for ‘justice’ nowadays?

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Glad to see national coverage on ABC News about Judge Sharon Killer’s refusal to keep the Court of Criminal Appeals open an extra 20 minutes to allow defense lawyers, who were apparently having computer/technical difficulties, to file a stay of execution.

Some quick background. The United States Supreme Court has agreed to hear a case, Baze v. Rees,  to decide whether lethal injection is a constitutionally permissible execution method. The legal issues get a little more complicated than that actually, but suffice it to say that this isn’t some crackpot defense lawyer theory: the American Medical Association’s code of ethics prohibits its members from participating in lethal injections. And there is ample evidence to show that without proper medical attention, lethal injection executions run a high risk of being botched. 

Botched execution methods? Potential for Eighth Amendment cruel and unusual punishment appeals? Apparently SCOTUS wants to take a look at the issue.

So, many states are wisely deciding to stay executions using this method until the Supremes come to a decision. After all, it’ll be a little hard to ‘undo’ the punishment, if SCOTUS rules for the defense.

Back to Judge Killer. When Michael Richard’s lawyers called to alert the court that they were having problems getting to the court by 5 p.m., they were told, essentially, “tough s**t”.   No extra hour, not even an extra minute to file the appeal. Richard’s lawyers wanted the stay based on the Baze case. And they would have eventually gotten it.

How do we know? Well, the US Supreme Court ordered Texas to halt an execution two days later, based on the same reason for appeal.

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

[Also see Mark Bennett’s blog to sign the complaint being filed in this matter.]

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Last week I referenced that the U.S. Congress Joint Economic Committee was holding a hearing on the over incarceration problem in America.

More specifically I anticipated that the testimony of Dr. Glen Loury and Dr. Bruce Western of Brown and Harvard respectively would be worth listening to. And indeed it was.

From Loury:

First, I wish to emphasize that with the advent of the mass incarceration policy we have witnessed an historic expansion of coercive state power, deployed internally on a massive scale. Violent crime peaked in the early 1990s, and began what has proven to be a long, precipitous decline…

As a result of this policy, the American prison system has grown into a leviathan unmatched in human history. Never has a supposedly “free country” denied basic liberty to so many of its citizens.

As of December 2006, some two-and-one-quarter million persons were being held in the nearly 5,000 prisons and jails that are scattered, like an archipelago, across America’s urban and rural landscapes.

Incarceration is now being used in the United States on an unprecedented scale. We imprison at a far higher rate than any other industrial democracy in the world. We imprison at a higher rate than Russia or China, and vastly more than any of the countries in Europe.

And, it is costing us a veritable fortune. Spending on law enforcement and corrections at all levels of government now totals roughly a fifth of a trillion dollars per year. In constant dollars, this spending has more than quadrupled over the last quarter century.

From Western:

Three types of policies would help alleviate the social and economic effects of mass incarceration.

1) Congress should re-examine the large of number of collateral consequences limiting the access of ex-felons to Federal benefits and employment. Many restrictions such as limitations on educational, welfare, and housing benefits do not serve public safety, impede the reintegration of the formerly-incarcerated, and penalize family members. While restrictions on benefits or employment might be justified if they are closely linked to particular crimes, such restrictions should be strictly time-limited, given the strong pattern of criminal desistance with age.

2) Congress should support prisoner re-entry programs that provide transitional employment and other services. Well-designed programs have been found to improve employment and reduce recidivism. Research suggests that community-based re-entry programs should ideally be integrated with education and other programs in prison, and also provide housing, drug treatment, and health care to improve the job readiness of released-prisoners. Post-prison employment would be encouraged by passage of the Second Chance Act of 2007. Employer incentives can be promoted through expansions of the Work Opportunity Tax Credit and the Federal Bonding Program. Taken together, these three measures would provide an important first step to a comprehensive Federal re-entry policy.

3) Congress should support the establishment of criminal justice social impact panels in local jurisdictions that can evaluate unwarranted disparities in juvenile and adult incarceration. By assessing the link between socio-economic disparities in offending to disparities in incarceration, local social impact panels could identify and take steps to eliminate disproportionate incarceration in poor and minority communities. Social-impact panels could also be charged with assessing disparities that may arise under proposed sentencing reforms.

These snippets are literally the tip of the iceberg. Read the transcripts and spread the word that incarceration is not the solution to everything.

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The always excellent Adam Liptak writes about a ‘quirk’ of United States Supreme Court death penalty jurisprudence: the fact that it takes 4 justices to grant review, but 5 to stay an execution leads to the execution of defendants before their cases can be heard.

From ‘Going to Court, But Not in Time to Live”:

It is possible, then, for a death row inmate to persuade the court that his case is so important that it deserves a place on the court’s tiny docket of roughly 80 cases a year — but not so important that he should be allowed to stay alive in the meantime.

Consider the case of Luther J. Williams, who was put to death on Aug. 23 in Alabama. Four justices had voted to stay the execution.

Mr. Williams’s appeal included a challenge to the constitutionality of the chemicals used in lethal injections, which have the potential to cause excruciating torture if administered improperly. A month after his execution, the court agreed to hear that question in another case.

When you hear death penalty advocates insist that all defendants have had full access to the courts… remember that this is the definition of full access.

Supreme Court math used to yield different results. As Justice Lewis F. Powell Jr. wrote in a 1986 decision, “the court has ordinarily stayed executions when four members have voted” to hear an appeal.

But Justice Powell, who was in those days often the swing vote, grew testy about the practice. It “illustrates how easily the system is manipulated in capital cases,” he wrote to the other justices after providing the fifth vote for a stay as a courtesy in a 1985 case.

By 1990, things had changed. “For the first time in recent memory,” Justice William J. Brennan Jr. wrote, “a man will be executed after the court has decided to hear his claim.” The man was James E. Smith, and he was put to death in Texas the day the stay was denied.

This is one of those situations where there’s a clear injustice, and a simple solution.

#1) The reason it doesn’t take 5 justices (out of 9 total) to grant a petition to hear a case in the Supreme Court is that they haven’t actually heard the case yet, so they don’t know how many total votes for reversal there might be. 4 out of 9 to grant review is perfectly reasonably. That fifth vote to reverse is frequently there.

#2) Requiring 5 out of 9 to grant a stay of execution is ridiculous, in light of #1.

#3) The current rules lead to absurd (never mind unfair, immoral, illogical, etc.) results. So change the rule. Make it 4 out of 9. Simple – ‘nuff said.

Gosh, next thing you know, ‘full access to the courts’ will mean they’ll be executing people because some lawyer forgot to file a petition on time, rather than on the basis of actual guilt. Or that executing the actual innocent defendant doesn’t rise to the level of cruel and unusual punishment.

Oh wait…

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Robbie Cooper of UrbanGrounds has weighed in at the comments section of my post ‘A Staunch Pro Death Penalty Advocate Responds’.

For some background, the blogversation starts with Radley Balko, comes to “Execution is Proof of Guilt in Texas,” and has sparked a new thread at Defending People.

Before we get to the meat of Robbie’s comment, let me set the table.

First, Mark pointed out that Robbie was unaware that Texas does now indeed have Life without the possibility of parole in capital cases. And indeed, many Texas District Attorneys opposed giving the jury the option to sentence a defendant to LWOP. And support the destruction of evidence that could prove a defendant’s innocence post conviction, as long as we’re on the subject.

Most defense lawyers believe that opposition to the LWOP option was based, at least in part, in the prosecutors wanting to be able to subtly argue that if the defendant wasn’t executed, he’d be released soon - perhaps even ride the elevator down with the jurors!

Defense lawyers were overwhelmingly in favor of the Life Without Parole option. Go figure.

Back to the main points in Robbie’s comments as to why he favors the death penalty. #1 was ‘there ought to be LWOP’ combined with ‘convicted murderers can still kill while imprisoned’. The rest:

#2) Some people are just pure evil. And the world is a better place without them. Most of the people who are sentenced to die fit this description.

#3) The death penalty isn’t about deterrence. It isn’t about revenge. It’s about justice — it’s about making the penalty for committing the crime equal to or worse than the violence committed upon their victims. Some people commit such ghastly crimes, that death is the only suitable and just punishment.

#4) But mostly, I support it because I believe that the value of human life is so high, that it is best affirmed by killing those who would kill others; that the ultimate price for taking a human life should be to give up your own.

I’m glad you didn’t mention general deterrence.

OK. Point by point.

#2) Some people are just pure evil. Perhaps true, perhaps not. It’s somewhere between a matter of opinion, and a matter of semantics.

But given that the comments from Jeff Deustch earlier in the threads focused on the absolute mathematical certainty that you can’t have a perfect death penalty system and supporters should expect some innocent deaths, it seems out of place. 

I mean, we started the discussion with Balko’s point about Texas DA’s opposing DNA testing for an already executed defendant. Robbie, it’s that kind of thinking that answers your question:

Of the more than 1000 people executed in the U.S. and the more than 400 people executed by the State of Texas --- has a single one of them ever been exonerated by a court of law?

Not when folks aren’t allowed to investigate. Kind of makes it impossible to prove. And for the most part, well over 99.99% of the time, the defense lawyers stop working after their client is killed.

But defense lawyers should also acknowledge that we use a variation of this argument ourselves at times. If you can throw in a healthy dose of ‘the S.O.B. needed killing’ into your self defense argument in a murder trial, you’re going to do it. Yes, there are obvious differences, but let’s admit we aren’t above playing that card ourselves.

#3) The death penalty isn’t about deterrence or revenge. It’s about justice. Again, it’s only justice if you’ve got the right guy. And that’s one of my main problems with the death penalty.

Actually though, I think the point is about restitution. I think that’s the proper legal term for it.

If someone is convicted of theft, they are ordered to pay back what was stolen or damaged. If someone is convicted of a DWI involving a collision, they will be ordered to pay the owner of the other vehicle, or perhaps just the deductible if insurance paid.

The main argument, although rarely enunciated this way, that the State has going for it is the belief by the jury that the family of the decedent will feel better if the defendant is executed. I won’t pretend to be an expert on the subject, but I believe that in fact, there are studies that show that families who initially supported the death penalty in fact get no satisfaction from it.

Assuming that a loved one has been murdered, and that the defendant is the murderer, if the family members don’t actually get this ‘restitution’ as I’m labeling it, I think this argument fails. But, I think in some ways it’s the strongest argument for capital punishment.

#4) The value of human life is so high, that it is best affirmed by killing those who would kill others.

Honestly, and I’m going easy on this one… I just don’t get it.

You either believe #4, or you don’t.

This is an important subject; please feel free to weigh in…

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Excellent article by Christopher Shea who writes the ‘Critical Faculties’ column in this weekend’s Boston Globe, “Life Sentence”:

What if America launched a new New Deal and no one noticed? And what if, instead of lifting the unemployed out of poverty, this multibillion-dollar project steadily drove poor communities further and further out of the American mainstream?

That's how America should think about its growing prison system, some leading social scientists are saying, in research that suggests prisons have a far deeper impact on the nation than simply punishing criminals.

Fueled by the war on drugs, "three-strike" laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.

The article makes many good points.

One is the problem that most of the general public is completely unaware that America is the Land of Incarceration (5% of the world’s population, almost 25% of the world’s prisoners). Most folks that aren’t in the ‘criminal justice’ industry are shocked by those numbers.

Shea argues that the pendulum is perhaps swinging in the other direction. He points to Glenn Loury and Bruce Western’s upcoming testimony at next week’s congressional hearings. The Joint Economic Committee will focus at least in part on the economic costs of our current ‘lock the door, and throw away the key’ approach to punishing drug crimes.

Shea believes that prison reform will take off as books are being released and sociologists focus on the problem.

Speaking of pendulums, also see One-Way Street’s analysis of the article:

The incipient prison reform movement may have less to do with genuine concern for the unfortunate than a consequence of a long economic expansion finally running out of gas. Citing Foucault's Discipline and Punish is irresistible in this context, and Foucault points out that prison reform is most likely to occur in affluent times, when criminality tends to turn toward crimes against property, causing in turn a broad harshening of penalties.

Rather than just simply throwing every crack head burglar in jail for the rest of his life, as we're essentially doing now, reformers wanted not to soften the law but to lessen (or sometimes merely to hide) the arbitrariness of justice.

Foucault himself was a member of the Groupe d'information sur les Prisons (GIP), a prison reform group, but that didn't prevent him from being suspicious of prison reform movements in general, which he regarded as agents in the redistribution of power.

On a personal note, I believe that in the centuries to come, societies will see the War on Drugs as a great moral failing on the part of the United States; that is, incarcerating drug addicts for substantial periods for doing what we know they do will be unthinkable. Don’t forget, at one point most folks didn’t question the morality of slavery.

But I have also argued in the past that drug war reformers will initially prevail, and in baby steps at that, by making cogent economic arguments. Give me fifteen minutes to have a serious back and forth conversation with anyone, anyone who is pro-Drug War, and I’ll have them at least halfway converted when they hear how much 25 to Life costs them, for non-violent drug users. The most hard headed will at least concede that the really high sentences shouldn’t be handed out for any marijuana offense, or for anyone that ‘only uses’ drugs. I think many of them think I am stretching the truth when I tell them the horror stories.

[Hat Tip: Oregon marijuana lawyer Lee Berger. Thanks for sending this article out on the NORML Legal Committee ListServ. Also see Pat Rogers.]

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President Bush has commuted Scooter Libby’s prison term, saying:

I have concluded that the prison sentence given to Mr. Libby is excessive.

Based on that reasoning, here are some suggestions for the President regarding future pardons and commutations.

Felony Drug Offenders: It is a myth that defendants do not serve prison time for simple possession of controlled substances. For example, in Texas, 1 gram of cocaine (the equivalent of a sweet and low packet) carries a maximum penalty of ten years in prison. Any amount of prison for possession of small amounts of cocaine or heroin is excessive; therefore, pardons for all are in order.

Crack vs. Powder Cocaine Offenders in the Federal System: the Federal Sentencing Guidelines mandate a five year minimum prison sentence for 5 grams of crack; the same minimum doesn’t kick in until 100 times that amount for powder cocaine. Arbitrary? Yes. Capricious? Yes. Excessive? Of course…many more pardons coming.

Three Strikes and You’re Out for Petty Offenses: The most famous case is Leandro Andrade’s. His case went all the way to the United States Supreme Court, who upheld his 25 years to Life sentence for theft of $150 worth of videotapes. Unfortunately, the public seems to believe that 3 strikes laws apply only to the worst of the worst: murderers, rapists, etc. Too often they are applied in fact to petty criminals. It’s the definition of excessive.

‘Statutory Rape’ Laws: Speaking of real rape, reminds me to mention something that shouldn’t be called rape in the first place: consensual sex. Usually between teenagers, who, had one of them been born a few weeks or months earlier, would not have been criminal. In Texas, we don’t call it ‘Rape’; it’s called sexual assault and that does a great disservice to the public. Genarlow Wilson’s ten year minimum sentence for consensual sex must surely be considered excessive, if Mr. Libby’s two and half year term for intentionally lying and perjury is. Wilson’s case is famous, but tens of thousands of others are imprisoned with no fanfare.

More from the President’s press release:

…the punishment does not fit the crime: Mr. Libby was a first-time offender… and was handed a harsh sentence based in part on allegations never presented to the jury.

Imprisonment is inappropriate for first time non-violent offenders… and lengthening sentences for ‘relevant conduct’ based on hearsay and guesswork in PreSentence Investigation(PSI) reports is ridiculous…? 

Fine by me. Let’s apply this reasoning to everyone though, shall we?

I’m hoping to hear from other criminal defense attorneys in the blogosphere. Post about your suggestions based on the unreasonable pubishments in your jurisdiction, and let me know about it.

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Being on deferred adjudication probation for a Class B misdemeanor or higher will feel exactly the same to a defendant as being on “regular” probation.

Now, a County or District Court judge has the option of making any probation, whether regular-conviction or deferred a non-reporting probation. But it’s unusual.

In fact, in Austin/Travis County, it is extraordinarily rare. It’s more likely that I can get a case dismissed, or perhaps a fine only, than that I can work out a “probation by mail.”

I do know, however, that in some counties, probations where you report by mail are common, or even the norm.

But other than that, deferred adjudication means reporting to a probation officer, turning in proof of community service, fines, court costs, U/As, and all the other bells and whistles that come with regular probation.

[Question sent to me via email]

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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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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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The Adventures of Steanso brought my attention to a bill filed by Representative Jerry Madden of Plano that would inject a modicum of reason into our current controlled substance probation laws. 

The biggest obvious change would be to shorten the maximum length of probation for 3rd degree felony drug offenses from ten years to five. [See also Scott Henson’s continuing and excellent coverage on the subject of why shortening probation terms in Texas would be a good thing: start here and here.]

But there are other important changes tucked in there too, that need to be implemented. For example, it would require Texas judges to give credit to revoked probationers for the time they spent successfully completing SAFPF (the underlined portions are the proposed changes; they have not taken effect):

SECTION 1.  Section 2(a), Article 42.03, Code of Criminal Procedure, is amended to read as follows:

(a)  In all criminal cases the judge of the court in which the defendant is [was] convicted shall give the defendant credit on the defendant's [his] sentence for the time that the defendant has spent…

(2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility.

Government Code 493.009 refers to SAFPF (pronounced by judges, prosecutors, defense lawyers and defendants alike as “SAFE-P”), which is a six to nine month therapeutic community program served in TDCJ (prison) followed by three months at a residential facility, and more outpatient treatment after that. 

Basically, it can mean being locked up for a year.

Now here’s where it gets interesting. Defendants in Texas who are offered probation on a 3rd degree Possession of Controlled Substance charge might now be offered up to 10 years of probation with SAFPF as a condition of probation. Or they might get an alternate recommendation of 3 or 4 years in prison, if they chose to turn down probation.  Anywhere between 2 to 10 "to do"(as we say).

Since under current Texas law, the defendant will not get credit for the year he spent completing the SAFPF program, if he is later revoked on probation, he may decide “just to take the prison time” instead. For someone who was offered the minimum of two years TDC, factoring in the possibility of parole, it might actually mean the defendant spends less time locked up by turning down probation.

That’s right: there are currently many scenarios where defendants turn down probation if SAFPF is a condition, because they calculate that they may parole more quickly if they take a “low” prison sentence instead.

I’m sure most practicing criminal defense attorneys in Austin have had these discussions with their clients.

From a public policy standpoint, it’s idiotic. We ought to be encouraging drug offenders to seek treatment; not giving them common sense reasons why they ought to use tax payer money to be incarcerated.  And not crediting them with the time they've done towards potential future revocations is both unfair to them, and overly burdensome on the taxpayer.

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