The Average Cost of Conviction/Incarceration: $15,000+ (per year)

Hat Tip: Everyone who probably blogged about this a month ago when it was published, sorry I wasn’t paying attention at the time:

Incarceration reduces former inmates’ earnings by 40 percent when compared to demographically similar counterparts who have not been imprisoned, according to a new report from Pew’s Economic Policy Group and the Pew Center on the States.

The report estimates that after being released, former inmates typically work nine fewer weeks a year, and their annual earnings drop to $23,500 from $39,100. Not surprisingly, given the stigmatizing effect that a criminal record can have on a job applicant’s résumé, former inmates enjoy less income mobility than counterparts who did not serve time.

I’m going to go look up that report… more soon, unless, as always, I don’t bother to get around to it.

Case Closed

Overheard a bench conference about a motion to revoke a felony probation while standing in line waiting to talk to the judge this week. Putting the pieces together, the story went something like this:

The defendant was on a possession of controlled substance probation, and had mucked it up in several different ways. Probably at least one dirty U/A along the way, had absconded (fancy legal talk for “disappeared/not reported” for a few months), and was generally speaking not winning any awards for probationer of the year. As far as I could tell, no arrests for new offenses, but… what are you going to do?

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America: We're Number One!

From The Tao Of Criminal Defense Trial Lawyering, No Balm In Gilead:

Up through law school, we’re taught that the American criminal justice system is a wonderful thing. The organized bar—the ABA, local and state bar associations—pushes the same propaganda. It’s a lie.

The truth is that, while it may be better than any other system yet created, the U.S. criminal justice system objectively sucks. Factually-innocent people get punished every day. Pleas are coerced. Insane people get punished for doing insane things. Crappy lawyers take people’s lives in their hands. Children get treated as adults. Adults with the minds of children get treated as adults. Wealthy defendants get more justice than poor defendants. [emphasis added]

That’s a Tiger Woods crazy-long list of serious problems for a system that might be the best in the world. Worse still, it’s non-exhaustive, easily modifiable by the phrase “including, but not limited to”. So are we the best?

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John Smith, Beware (The Real SODDI Defense)


Three police cars pulled into Christina FourHorn's front yard one afternoon just before she was supposed to pick up her daughter at school. The officers had a warrant for her arrest.

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So What?

As usual, I’m missing something. In today’s front page story, “Photo From Death Row A Sign Of Inmates Online”:

A condemned San Antonio law enforcement killer sent a photo of himself out of Texas' death row two years ago using a smuggled cell phone, officials said Tuesday.

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Prison Envy

Via How Appealing, The Montana Town That Wanted to be Gitmo:

Two years ago, Hardin, Montana, population 3,600, celebrated the completion of the state-of-the-art private jail capable of holding 464 inmates.

Convinced that it would provide steady employment for over 100 locals, as well as accompanying economic benefits, the residents financed it through the sale of revenue bonds and turned it over to a for-profit prison-management corporation.

On a 40-acre field at the edge of town where pronghorn antelope once grazed, they built it. But nobody came.

Guilty Judges Say Thanks But No Thanks To The Guidelines

Other criminal law bloggers already weighed in last month when the news reported that two juvenile court judges in Pennsylvania took millions of dollars in bribes to automatically send juvenile offenders to private detention centers, in other words, to prison.

In a fit of disgust combined with blogging laziness I refrained from writing about the story at that time. (Blog envy may have had something to do with it as well. Fellow Austin criminal lawyer Lance Stott had already summed it up best with the succinct comment: “You know, there’s really got to be a special place in the afterlife for taking kickbacks to send kids to jail.” Once someone hits the nail on the head, there’s no need to continue.)

Then yesterday, Ian Urbina’s article “Despite Red Flags About Judges, a Kickback Scheme Flourished” was published in the Times. Urbina reported that in this particular juvenile courtroom:

Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt.

Two minutes. Seems like a long time considering you know in advance you are going to max the kid out. But I guess you’ve got to keep up appearances.

Lawyers told families not to bother hiring them. They would not be allowed to speak anyway.

My first thought was to blog about a concept I encountered twenty years ago in some undergrad cognitive psychology class: learned helplessness. Honest lawyers told parents not to hire them because there was nothing they could do in that court to help improve the child’s outcome. And unlike the animal psychology experiments by Seligman and Maier, no one ever could or did turn off the shock collars. Everyone really did go to prison. What’s the use of getting a lawyer?

But then for some reason, this part of the article struck me as odd:

On Thursday, the State Supreme Court ordered that the records be cleaned for hundreds of the 2,500 or so juveniles sentenced by Judge Ciavarella, and in the coming weeks, the two judges will be sentenced, under a plea agreement, to more than seven years in prison.

Other reports had very specifically said 87 months.

This was a federal case. The article stated that the defendants plead to “tax evasion and wire fraud”. A quick check on PACER confirmed that, yes, the information charged them with violations of federal law: 18 USC § 1343 (wire fraud), § 1346 (honest services), and § 371 (conspiracy to defraud the United States – that is, the “tax evasion”).

Federal crimes and a guilty plea = guessing game when it comes to the guidelines, right? Heck, Doug Berman makes a pretty good blog-living just from his frequent “everyone weigh in to guess what sentence So-and-So will get” posts.

And yet the papers were predicting the sentence exactly. Usually you’ll see some sort of namby-pamby mumbo-jumbo about “could get up to 20 years in prison”. Or whatever the maximum sentence could be. Ubiquitous background check availability on the internet still can’t guarantee that a journalist will accurately predict criminal history category.

And I’d bet even the best federal criminal defense lawyers are occasionally caught off guard by increases to the base offense level suggested by Probation in the Pre-Sentence Report. And even if you know the criminal history and the offense level, there’s still a range. Predicting an exact sentence in a federal criminal case is impossible.

With one exception. Federal Rules of Criminal Procedure 11 (c) (1) (C). Eliding, we get:

Rule 11. Pleas

(c) Plea Agreement Procedure.

(1) In General.

…If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will…

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

Another few clicks on PACER and my suspicions were confirmed. The defendants had entered into an 11 (c) (1) (C) agreement. They aren’t going to face the vagaries of the Federal Sentencing Guidelines; assuming the judge will approve the plea bargain, they already know exactly what they are getting.

The usual course of business when representing a lawyer, a doctor, a professor, a “professional” in a criminal sentencing matter is to beef up that “boy-scout packet” and argue to the judge that your client had always been an upstanding and contributing member of society. Except for this one little hiccup. Can’t you use your discretion to ignore those no-longer-mandatory guidelines and sentence us below them?

Of course, the flip side of Booker is that the judge is also free to “tailor the sentence” above the guidelines. And who is a judge going to hammer, if not some scumbag whose actions disgrace his own profession?

Still, it’s ironic, isn’t? These men who held the fate of thousands in their hands being afraid to leave their own sentences “up to the judge”. I find myself thinking like a victim’s rights advocate.

Wouldn’t it have been more appropriate if they had to walk into court, like their victims did, shaking in their boots and not knowing what their own fate would be?

Buyer's Remorse?

Via email:

Hello I recently accepted probation. I wanted to ask is it unconstitutional in Texas for me to be given a contract where I give up my right to a trial by jury when I accept probation?

I’m assuming “contract” means the plea paperwork and the portion of it that says, in legalese and this is obviously not verbatim, “You know you have the right to a jury trial, you know you have the right to a jury trial, you know you have the right to a jury trial…”

So, to answer the question, “No. It’s not.”  Without the contract(admonishments)?  Maybe.  But with the contract?  I doubt it.

Dying Before We Can Kill You

The Orlando Sentinel ran a story about Florida death row inmates dying before they could be executed. Apparently the grim reaper himself often appears in the fourteen year wait between sentencing and government sponsored execution. In the last ten years, it’s been a 50/50 proposition as to which comes first. From “Justice denied? On Florida's death row, many lives end -- but not by execution”:

Such figures don't surprise experts because death-penalty cases can take years -- even decades -- to work through the legal system.

While the condemned wait, they can fall victim to ailments traceable to years of unhealthy living before their convictions, including drugs and alcohol abuse.

It’s doubtful that accurate statistics are kept on how far below average the health habits of future prison inmates compare to the general population, but I’m willing to accept that partial explanation on common sense grounds. But I’d also bet that every year in the joint ages a man at least twice as fast as a year outside. At least twice, probably more.

One inmate committed suicide and therefore didn’t die “strapped to a gurney with witnesses watching through a glass window as the court ordered.” One of his victim’s family members said that while he didn’t feel cheated, he felt no relief either.

Any folks out there sweating Death as their loved one’s murderer appeals his way out of punishment? But of course. For example, one woman whose cousin was murdered (by a man related to her by marriage) said:

[S]he does not oppose appeals, in general, because she wants the "right bad guy" punished. She wants her family to be able to live without the fear that Hitchcock could someday go free, however.

"I do not want him to die of natural causes," Meadows said. "I want him to know the fear of taking that walk to his final destination on earth."

Before my server explodes with angry emails about “how would YOU feel IF…” let me go on record right now:

If you killed one of my family members I would not want you to feel the fear of waiting for the Government to kill you back. Instead, I would want you to feel absolute and total terror as I personally strangled, stabbed, shot, and otherwise tortured you into Hell.

However, I like to think I could acknowledge that “how I felt about it” shouldn’t be the only public policy consideration in determining your punishment. Or, for example, whether or not we stopped to have a trial before we punished you in the first place. But I admit I haven’t been there and hope never to be.

But why so long? Why must it take so damn long to get through the process, right? That’s what concerns most of us. The article finishes with – or is that gives short shrift to? – just one of many examples of a man who was rightly saved by the length of the process:

Former death-row inmate Juan Roberto Melendez, 58, says he's alive because he had the time to appeal.

He was sentenced to die for the 1983 murder of Auburndale beauty-salon owner Delbert Baker.

It took 17 years, eight months and a day before his attorneys uncovered evidence that would have cast doubt on Melendez's guilt. Polk County prosecutors elected to drop the charges.

On Jan. 3, 2002, he became a free man.

"In trying to get the Ted Bundys and child killers, innocent people get caught up in the net," he said by phone from where he lives in New Mexico. "The system is not perfect."

The system is not perfect. Therefore decreasing the time between sentencing and death necessitates increasing the wrongfully executed. So pick your poison, and live with the consequences either way.

[Hat Tip: Sentencing Law & Policy Blog]

Freudian Slip?

Scanning the search terms, I come across:

Bored of Pardons and Parole

As in.. “We’re bored with pardoning and paroling folks, so we just decided not to do that anymore”?  

Misdemeanor Jail Call

From Law is Cool:

"You mean,” he said, this look of absolute unbelief working across his face, “you mean, if I’m guilty I get out today?”


“And if I’m innocent I stay locked up?”

“You got it, man.  So what are you gonna be, guilty or innocent?”

James Mills, One Just Man, Simon and Schuster

Smile, You're Under Arrest

That’s the name of the latest and greatest show that network TV has in store (or as Balko says “I think reality TV may have finally hit bottom”). So what exactly is this fabulous concoction whipped up for our viewing pleasure?

The show features law officers in Phoenix setting up grandiose sting operations to lure criminals with warrants into their waiting hands, and cameras.


“Ah, I see,” said the blind man. This is pink underwear, tent city, “America’s Toughest Sheriff” Joe Arpaio country. Supposedly the good news is that this latest publicity grab won’t cost “his” taxpayers forty three million dollars in settlement payouts for dead and injured inmates.


“It is a reverse Punk’d,” says Fox President of Alternative Entertainment Mike Darnell.


“Instead of the worst day of your life and then a joke at the end, this is the reverse. This is the best day of your life, and then we arrest you.”


Well I can just hear the announcer’s voice now in the promos: “For those of you who like to mix reality with a little Schadenfreude…” But hey – it’s OK to get a little pleasure out of other people’s misery, right? I mean, if they’re bad people…


“If it were a regular person you’d feel bad for them, but they are all wanted by the law,” Darnell says. “It’s Cops as comedy and no one’s ever tried it before.”


According to Darnell, all of the marks are non-violent criminals.


Non-violent criminals? Does that go all the way down the ladder including folks who have forgotten to, or been unable to pay their traffic tickets? I don’t know the answer to that, but I'm glad to know that this will be done only to non-regular people.


These types of stings are possibly ethically justifiable on some sort of “they had it coming”/ “just saving the taxpayers money” axis. After all, it’s a lot cheaper if you can fool people with outstanding warrants to come to you than it is to round them up.


But it’s the viewer himself sitting at home on the couch actually enjoying someone else’s “worst day” that is so troublesome. Have you no sense of decency, sir? At long last, have you left no sense of decency?

Searches That Make You Go "Hmmmmm"

Proving the obvious - that not everyone with access to the internet has a brain - comes this gem:

I "don't agree" with taxpayer money used for inmates to receive[sic] their "GED" in prison


I’m tempted to repeat a little rhyme about “I before E” but instead I’ll just…


** Sigh **

Some Good Ideas About Federal Sentencing

Thanks to Mark Bennett for posting a .pdf to the Texas defense lawyers listserv of the recent letter by the Federal Defenders concerning sentencing reform to the U.S. Sentencing Commission. The email contained specific instructions that the .pdf was a public document and was meant to be disseminated, so here’s a link.

I haven’t finished all 70 pages of it yet, but here are some highlights for what the Commission should do:


  • Reform the relevant conduct guideline;
  • Narrow the career offender guideline to the extent possible within statutory limits and recommend to Congress that § 994(h) be repealed;
  • Reassess and adjust the guidelines that are based on mandatory minimums, including the crack guidelines;
  • Amend the guidelines to give the courts more flexibility to sensibly use alternatives to incarceration under the guidelines;
  • Prepare an updated study of mandatory minimum laws;
  • Eliminate the unwarranted disparity in mandatory minimums for crack and powder cocaine;
  • Reduce the overall severity levels and the prison population;
  • Increased focus on rehabilitation;
  • Increase flexibility and simplicity.


Sounds reasonable to me.

So Everyone in Prison Deserves to Be There?

In the comments section of an Austin American Statesman story titled “Drugs, mental health and the justice system” a reader who identifies himself as a former probation officer wrote:

As a former Probation Officer I read this story with real interest. In seven (7) years on the job, I can't recall a single instance where an offender wasn't offered an alcohol and drug treatment screening.


In fact, most offenders were ordered to complete inpatient or outpatient treatment while on probation.


It is entirely untrue that prisons are filled with folks who were never offered drug treatment. The majority of that population are multiple offenders whom have had more than one (1) opportunity to complete a substance abuse program.


In other words they were offered the treatment that everyone agrees they should get. Then they ment on to commit more crimes and they ended up in prison. The Criminal Justice system has a larger responsibility to the law abiding citizen, than they do to the criminal.


Thankfully, if you read all the comments you can see that the jury pools in Austin are full of reasonable minded citizens who think that probation is – at worst – what folks caught possessing drugs should get, but as for the comment above, I’d ask a really simple question:


Do you think that as a probation officer – that is, someone who met only with offenders who had already been placed on probation – you might have only been exposed to those defendants who indeed did have treatment offered to (or forced upon) them?

Whose Decision Is It?

Someone googled:

“Whose decision is it to put someone in jail if you fail a drug test while on probation?”

Well, if you fail a U/A while on probation, your probation officer will file a motion to revoke which causes paperwork asking that a warrant issues to be sent to the court for the judge’s signature.

On some minor violations the court will actually issue a summons instead of a warrant (at least in Austin) but most judges around here will authorize the warrant for a positive specimen.

So initially the ‘decision’ is the PO’s and the judge’s, if you’re talking about the decision to issue a warrant. If and when you bond out of jail, however you still face revocation proceedings in court.

I think this is what the question is really asking about, and the answer is: the judge.

In Texas – and I’d bet in almost every place as well – you are not entitled to a jury trial to decide whether or not you are in violation of probation. And worse still, the state need not prove the violation beyond a reasonable doubt, but only “by a preponderance” which means more likely than not.

So, try not to fail any U/As on probation, and there’s really only one good way to make sure of that, if you catch my drift…


Deferred Adjudication Means It 'Goes Away'... Right?

From an email:

If you have the time, and don't mind, may I have your perspective on Article 42.12 - the specified portion:

If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty,

Does this mean there is no longer a conviction on an individual's record after the judge "sets aside the verdict". May I interpret this as meaning there is NOT a verdict (or case) if the judge has set it aside? How about the original conviction popping up on One's background check?

Thanks for your insight - I remember reading the case of Cuellar v. State. And one final thing, might a person qualify for the 55.01 since the case has technically been dismissed - or worded as such?  Again Sir, thank you for your time and attention.

My Answer:

The section of 42.12 (which is unbelievably complicated) that you quote is actually from the early termination part of the statute, which may be what you are referring to in your individual case.  

But there’s also similar (or should I say similarly deceptive?) language in the portions of the probation statute about successful completion of deferred adjudication probation. I’m not sure in your case whether you’re talking about the fact that you were released from probation early or simply completed a deferred.

Either way, Houston criminal defense lawyer Mark Bennett just addressed this issue, and unfortunately the law is clear: as far as Chapter 55 expunctions go, you are not eligible for one.

And as Mark’s post makes clear, chances are better than 50/50 that you got some not-the-whole-truth advice from your original lawyer.

If your case was a successfully completed deferred, you may be eligible for a Motion for Non Disclosure, which may be of some help to you. It’s surely no substitute for the correct legal advice from the start, but it may be something…

The Cocktail Party Question

It’s the question criminal defense lawyers get asked regularly, by friends, family members, strangers on the train, etc.

The Houston Chronicle – or should I say reporter Mary Flood? – asked Mark Bennett “The Question” in this morning’s paper:

Q: What do you tell folks who ask how you can defend people accused of crimes?

A: How could I not? It's what I'm called to do.

People think if someone committed a crime and is not punished by the government, he got away with something. I can't help but think there is order in the universe and the bad things you do come back to you one way or another.

There are a lot of answers to "The Question" as I call it, with a capital T and a capital Q: How can you do this?

If I don't, nobody will. If I don't defend people who did something bad, who will defend the accused who didn't do something bad? We can't decide. If everybody felt the same way, then people who didn't do anything wrong could not be defended either.

It's a huge question.

A lot of the punishments the government metes out are much more severe than I think they should be. The government likes to put people in a box — with probation or jail or a coffin.

Mark hits all the highlights of “The Perfect Answer”, with a capital T and a capital P and capital A.

  1. Karma’s gonna get you.
  2. Somebody has to do it. Has to. Think about it.
  3. To heck with guilty or not, fighting unjust punishment is a noble cause.

#3 might be my favorite. At least if we’re keeping this in that mythical cocktail party context where I’m being asked The Question. My goal in that situation is to turn the person around as quickly as possible. At least to get them to acknowledge #2.

It doesn’t take long before you get into the conversation and the person is shocked to find out that a person possessing a sweet and low packet’s worth of cocaine is subject to ten years confinement in the penitentiary, and all of a sudden they’re telling you, “Oh, well, no no no, I don’t agree with that…”

See? That’s what we do.

Moving The "Too Late" Deadline in Death Penalty Cases

Last Fall the Texas Court of Criminal Appeals got some deservedly bad press for allowing the execution of a death row inmate to proceed because the appellate lawyers arrived at the courthouse door 20 minutes late.

Mind you, the defendant had not yet been killed – but his lawyers ran into some problems getting to the courthouse on time, and missed their deadline by twenty minutes. They called beforehand to let the Court know they were on their way, but apparently Sharon Keller was late for happy hour – or something, I forget the exact details – and at 5:20 p.m. they were literally shut out.

So, this morning they decided to fix the problem. They adopted the innocuously titled Miscellaneous Rule 08-101 which moved the deadline for filing a stay of execution or subsequent writ application to 48 hours before 6 p.m. on the scheduled execution date.

Excellent. Sounds like the problem is solved. Unless you take a moment to think about it.

A deadline is a deadline. (If that sounds almost tautological, you got me.)

All the court has done is move the goalpost. You can miss a 6 o’clock Wednesday deadline just as easily as you can miss a 5 o’clock Friday deadline. It’s the same thing.

To be fair, they threw this in:

Special Requirements for Untimely Petitions or Other Motions.

Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely motion requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request or motion.

Counsel is required to show good cause for the untimely filing.

OK. Admittedly, the fact that death penalty lawyers are now given a few extra hours to explain why they were late might make a difference some time in the future.

But as often as we execute people in Texas, who wants to bet that we will be reading future court decisions that reject a lawyer’s reasons for an untimely appeal because they didn’t prove that it was physciall, legally or factually impossible for them to make it to the Courthouse steps by 6 p.m.?

[Hat Tip: Kiele Linroth Pace for originally posting about the new rule on the Austin Criminal Defense Lawyers ListServ]

That So Called Innocence Project

Hat Tip: Simple Justice 

At least he ends it with the line:

I'm fine with using DNA to find people innocent it they're truly innocent. I just want you to know that.

I’m sure they’re happy to have your permission to do that, Senator.

It Is Better For One Innocent Person To Be Convicted...

Houston criminal defense lawyer Stan Schneider left a series of comments on former Harris County District Attorney candidate Kelly Siegler’s post There’s No Such Thing As ‘Closure’ over at Women in Crime Ink. His last comment in the thread ended with:

Remember - it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison.

To which Levi Page, administrator and message board operator of the War On Crime blog, replied:

Well I disagree, with that last line "it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison."

Those 9 guilty people will be let out and most likely continue being a criminal, especially if they are a sexual predator.

Do the math.

A fine point Levi, even if not justifiable under our system of laws, because it illustrates a criminal defense lawyer’s worst fear of how a juror may literally mathematically calculate the effect of their decision.

Take a 12 person jury deliberating on an aggravated sexual assault of a child case. They know – instinctively, even if it’s not discussed openly – that there are 4 possible outcomes:

  1. Innocent defendant is acquitted and goes home.
  2. Innocent defendant is convicted and goes to prison.
  3. Guilty defendant is acquitted and goes home.
  4. Guilty defendant is convicted and goes to prison.

Options #1 or #4 are everyone’s preference. No jury wants to be involved in a case with either a #2 or a #3 outcome.

But they’re not sure. Not sure whether the defendant is guilty or not. Unsure of his innocence or his guilt, surely an internal debate on which is worse - #2 or #3 – starts in their mind.

And this is the crux of Levi’s argument. Let’s do the math.

Option 2: Innocent person is convicted and sent to prison. One person unjustifiably suffers horrible consequences

Option 3: Guilty sexual predator is initially ‘caught’ and accused, but skates. He not only goes home, but feels even more impowered to continue violating innocent children, again and again and again. Many people unjustifiably suffer horrible consequences.

Even if you throw in the innocent defendant’s friends and family members to up the number of wronged persons in Option 2, that has to be counterbalanced by an equal number of friends and family of the children who will be preyed on in the future. 

I’m not saying this happens in every case, or is discussed out loud in the jury room when it subconsciously enters the thought process. 

But taking Levi’s argument to its logical conclusion? It’s better that one innocent go to prison than one guilty person goes free. One freed guilty person will continue to victimize several future innocents. Accordingly, even a one to one ratio of innocent to guilty in prison is an acceptable rate.


Imagine if elected official and media pundits were focused as much on the rising US prison population as they are focused on rising price of oil.  But, perhaps I expect too much from elected officials and the media when I hope they can be as concerned about human liberty in America as they are concerned about the cost of crude.

That’s from Doug Berman, commenting on the latest Justice Department report on overcrowding the US prison population.

For the full data reports, check out these links: Prison Inmates at Midyear 2007 and Jail Inmates at Midyear 2007.

Any Wonder We Have an Over-Incarceration Problem?

We – the collective we that is, which somehow does not include me – we have lost our minds.

Man jailed when daughter fails to get diploma

CINCINNATI (AP) — A man ordered by a judge to make sure his daughter hit the books has found himself in jail because she failed to earn a high school equivalency diploma.

Brian Gegner, of Fairfield, was sentenced last week to 180 days in jail for contributing to the unruliness or delinquency of a minor.

He was ordered months ago to make sure his 18-year-old daughter Brittany Gegner, who has a history of truancy, received her GED — something that hasn't happened yet.

Brittany Gegner, who said Monday that she plans to take a required GED test this month, said her father shouldn't be blamed for her failure because she has been living with her mother.

There’s so much about this story that I don’t understand – it happened in Ohio, not my area of expertise, so to speak – that I tried to Snopes this, and otherwise de-verify it, or figure out that it was a practical joke. The story itself that is.

But no, it’s all over the blogs, this is from an actual AP story.

Honestly, I don’t know what’s wrong with us.

A Week in a County Jail: Hot Bologna, Eggs and Gravy

Blogging has been light, admittedly in part since I ‘discovered’ iTunes, but this favorite Tom T. Hall gem made me think about bologna sandwiches in the Travis County Jail. After being arrested for speeding while ‘sitting at a red light’, the narrator discovers the pleasures of what can only be small southern town 60s or 70s justice:

Well, they motioned me inside a cell with seven other guys
One little barred up window in the rear
My cellmates said if they had let me bring some money in
We ought to send the jailer for some beer

Well, I had to pay him double 'cause he was the man in charge
And the jailer's job was not the best in town
Later on his wife brought hot bologna, eggs and gravy
The first day I was there I turned it down

Well, next morning they just let us sleep but I was up real early
Wonderin' when I'd get my release
Later on we got more hot bologna, eggs and gravy
And by now I wasn't quite so hard to please

I sometimes ask clients what they were given to eat during their overnight stay at Downtown Travis County, and while the majority insist they weren’t in the mood to eat at all, many of them tell me it was bologna sandwiches, sometimes with cheese, sometimes with a small cup of jello.

My theory is that the Travis County Sheriff’s Office deliberately makes the stay unpleasant. My clients tell me they run into some recently arrested that act like they were there last weekend, and expect to end up in jail the week after that. 

I doubt the bologna has much effect on them. But for the others? You can beat the rap, but you can’t beat the ride.

Dallas DA on 60 Minutes: Practical Blawgosphere Goes Hog Wild

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…]

But Why Are Houstonians So Easily Shocked?

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?

Is the Maximum Sentence the Same as Getting Off Easy?

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?

Crazy School Stories: Underanalyzing & Overpunishing Kids

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.


Why Law Enforcement Supports Mandatory Minimums

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.


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

Imprison Them... Before They Deport Themselves

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.


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…

DOJ to Pew Report: You Forgot to Count the Children

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.

Help Me Ask Barack Obama a Question

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.

The Threat of the Death Penalty: Efficiency vs. Accuracy

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.

Travis County Jail & Surname Profiling

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.

It's the (Prison) Economy, Stupid

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.

Travis County Jail, aka New Home of the Federal Immigration Police

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.

Compensation for the Wrongly Convicted

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.

Retroactivity and the Federal Sentencing Guidelines

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.

Should a Lawyer's Mistake Kill the Client?

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?

Judge 'Killer': Disgrace on the Texas Court of Criminal Appeals

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.]

Mass Incarceration in the United States: At What Cost?

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.

Death Penalty Math at the Supreme Court

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…

More Death Penalty Debate

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…

Deferred "Judification"

It’s perhaps the most commonly misspelled legal term I see searches for.

Try “Deferred Adjudication” instead.

The War on Drugs is the new New Deal

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.]

More Pardon/Commutation Suggestions for President Bush

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.

Is Deferred Adjudication a Reporting Probation in Texas?

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]

Not Guilty? Texas Parole Board Doesn't Care...

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.

Texas Parole and "Mandatory" Release

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.

Back Time Credit for SAFPF and Shorter POCS Probations

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.

Deferred Prosecution in Austin Texas

Deferred Prosecution Agreements are different than both deferred adjudications, and deferred dispositions. The latter two are covered by statute. Deferred Prosecution, however, is not.

Deferred Prosecutions are basically informal agreements between the defense lawyer, the defendant, and the prosecutor to dismiss a case up front, that is, in advance of the accused agreeing to some concessions. I call it “informal”, not to minimize the seriousness of the agreement, but to point out that it’s not statutory, and the paperwork is not filed with the Clerk.

Because it is not available by statute, not all County prosecutors even enter into them. Fortunately, those accused of Class A and Class B misdemeanor crimes in Austin are potentially eligible, because the Travis County County Attorney’s Office will consider them in some cases.

In many ways, Deferred Prosecutions on Class A and B misdemeanors are similar to deferred dispositions on Class C misdemeanors. There is no formal probation where the defendant reports monthly – instead, he is simply on “his own probation”. The terms negotiated in these cases are usually stiffer than those on a Class C traffic ticket level offense.

Successfully completed Deferred Prosecutions are eligible for complete expunctions, unlike their cousins Deferred Adjudication. This is because the element of formal reporting probation in Deferred Adjudication makes expunction not possible. Best case there is for a Motion for Non Disclosure. (I know, it gets confusing, doesn’t it?)

The flip side of Deferred Prosecution agreements however, is that if the defendant does not do what he is supposed to (could be community service, a class, or simply staying out of trouble), the County Attorney’s Office will refile the initial charges.

As for felonies, the Travis County District Attorney’s Office only considers these agreements in the rarest of cases.

[See also, the difference between deferred disposition and deferred adjudication in Texas.]

Deferred Disposition vs. Deferred Adjudication in Texas

There’s a lot of confusion about the terms “deferred disposition” and “deferred adjudication” in Texas.

Deferred adjudication is a type of actual probation, for a Class B misdemeanor or higher charge, where the judge says (in legalese), “Based on your plea of No Contest or Guilty, I could find you guilty, but I’m not going to. I’m going to place you on probation, and if you jump through the hoops of probation, at the end of the case you will never be found guilty of the charge.”

To defer – to put off, or postpone. To adjudicate – in the criminal context it means to find you guilty. So when the judge places a defendant on deferred adjudication, he is postponing finding the person guilty, and will never find them guilty, if they successfully complete the terms of probation.

In Texas, that means a real, formal probation with a monthly visit to a probation officer, minimum community service hours, urinalysis for drugs and alcohol, fines, court costs and $62 per month probation fees.

Again, the major distinction here is that this is only for Class B and Class A misdemeanors, and felony charges in Texas. It’s not for Class C, that is, traffic ticket level offenses.

Deferred adjudications are not expungeable, but most are eligible for Motions of Non-Disclosure.

Deferred disposition is only for Class C charges, and is not a formal reporting probation. The theory is the same – that is, if you pay a (smaller) fine, usually take a class, and stay out of trouble, at the end of the deferral period you are not convicted of the offense. 

There is no probation officer, or monthly meeting. I suppose you could say that you are on your own probation, but that’s it. Some clerk will pull your file at the end of the term, check to see that monies are paid, certificates for classes are turned in, and run a criminal background check to see that you did indeed stay out of trouble. Then the case is dismissed.

For Class C Assaults, Theft, Public Intoxication, Minor in Possession and similar non-traffic offenses, this is the same as agreeing to take defensive driving, pay a small fine, and not pick up any more traffic tickets to get a speeding ticket dismissed.

In a successfully completed deferred disposition, you are specifically by statute entitled to seek an expunction, not just the less complete sealing of records.

Part of this confusion is perpetuated by Class C prosecutors, and even some Municipal Court judges, who continually refer to this process as “deferred adjudication”. In fact, the two are very different.

[See also, Deferred Prosecution Agreements.]

Applying for early release from a Texas probation

Texas probationers are sometimes told by the lawyer representing them on an original charge, “Don’t worry about how long this probation is, you can apply for early release”. (I know this, because I’ve heard it from so many folks, it’s apparently a common thing some lawyers tell their clients.)

Now, it’s true that you can apply for early release as soon as one third of your probation period is up. The statute covering early discharge itself (Article 42.12 Section 20 Code of Criminal Procedure, “Reduction or Termination of Community Supervision”) is contained within the lengthy probation statute.

The question most probationers want to know, however, is “Will the judge in my case let me off early, and if so, when?”, or “What do I need to do to actually be discharged from probation?”

Despite some potentially confusing language in the statute, let’s start with this: early release from probation is entirely discretionary, not mandatory. There’s no way to force the judge to grant an early discharge.  Even if you have completed all the terms, if the judge doesn't want to let you out of the probation term, you'll have to finish it.

Second, while the law allows for petitioning the court for release 1/3rd of the way through, most judges won’t grant a discharge that early. In Travis County, I’d ballpark the necessary length at somewhere between half and two thirds of the original probation term imposed before most judges will seriously consider letting you off early. Many times you hear a judge ask “You signed up for this long of a probation when you plead guilty. Why should I let you off without you completing your end of the bargain?”

Third, all conditions of probation (other than the length) must have been met: community service hours completed, classes finished, AA’s attended, monies paid, etc. As far as fees, fines, restitution and court costs goes, the only possible exception to that is some judges don’t require you to pay out the $62/month probation fees into the future. Then again, some do.

Finally, convictions for DWI, Sex Offenses, and State Jail Felonies are not eligible for early release.

No one should make a decision to accept a plea bargain in a case, on the basis of believing that they can automatically be granted an early release at some future time during the probationary period. Of course, it may be that X years of probation is truly the best deal that they can get, given the facts and circumstances of their case.

Incarceration costs

Doug Grow of the Minneapolis Star Tribune in “Should Society Give Up On Its Worst Criminals?” argues against life without parole punishments, in this particular case, for a murder with aggravating circumstances. Interesting to me was a short paragraph on the cost of incarceration:

Figuring it costs $40,000 a year to house a prisoner and assuming that Holliday lives another 50 years, Minnesotans will pay $2 million to care just for Holliday.

Now I don’t expect any great outcry anytime soon for convicted murderers, based on Grow’s column, or really, from any other source. However, I’d like to see more articles about the failed War on Drugs include references to the economic costs to society, so I am encouraged to see these figures in this context as well.

As I’ve argued before,“how much it costs you the taxpayer” is one of the most persuasive (and shocking) arguments to the unthinking drug war supporters, and it may be the one that eventually turns us back towards sanity in our drug legislation.

(Hat Tip: Public Pretender)

Do You Usually Have To Go To Jail For a First Time Misdemeanor in Texas?

I suppose I can really only to speak to criminal defense in and around Austin, but the general answer to this question is going to be “No”. We need to dig a little deeper though.

Assuming, as the question does, that the person has never been arrested before, and is charged with a first time offense of DWI, Possession of Marijuana, Theft, or some other non assaultive offense, most judges will grant the defendant probation, even if they go to jury trial and lose. And most cases, fewer than five percent, end up going to jury trial; most criminal cases are wrapped up in some form of plea bargain, whether it involves being convicted, deferred probation, a reduction of charges, or even an agreed dismissal.

Unfortunately, there are too many attorneys who speak with potential clients in a manner that implies that jail is a likely outcome, if they do not accept the prosecutor’s offer of a conviction and probated (no jail) sentence. While it’s occasionally true that severe aggravating circumstances might make jail a likely scenario, my experience is that for first time offenders, that’s unusual.

Another thing I tell my clients in the initial meeting is that it’s the conviction itself that is often the real punishment, not the probation that a judge might give as a likely sentence. I’m not minimizing the time, effort, expense and hassle that probation may cause a person, but the truth is that most of my clients can stay out of trouble for a while, perform some community service, and if necessary, report once a month for a short visit with a probation officer.

But once the judge convicts you, that’s it. No Expunction, no destroying the records, no Motion for Non-Disclosure, no sealing the criminal history. And the conviction follows you around for the rest of your life. So while asking “Am I going to jail?” is a standard and reasonable question from someone facing the “criminal justice system” for the first time, perhaps “Is there anything I can do to get this off my record completely?” would be a more important one.

Prison Overcrowding? Lack of Rehab Programs / Need For Labor

In an Austin American Statesman article today titled “A quick solution to prison overcrowding?”, and subtitled “Statistics show prisons house thousands of inmates who are good candidates for parole”,Texas Senate Criminal Justice Committee Chairman John Whitmire is quoted on the lack of funding for inmates to complete drug and alcohol programs pre-release:

"There are long waiting lists for those programs, so people sit in prison much longer than they should," Whitmire said. "We have 900 or so who are approved for parole but who have not been paroled because the programs they have to complete as a condition for parole are not available."

Whitmire said he is convinced that the large number of parole-ready trusties is a case of prison officials not wanting to lose valuable help. Outside trusties work as porters, help in offices and do field and community service labor. Inside minimum-security prisoners serve as cooks and janitors and do laundry and other chores.

"I'm convinced the reason we're not paroling more of these people is that they're the workers," he said. "If they're a low-enough risk that they are allowed outside without close supervision, why not parole them and put them on a monitoring bracelet, and open up that bed for someone else?"

"Based on these numbers, I think we should take a look at every bed we have, and who is in it, before we build any more," Whitmire said.

Taxpayers spending more on incarceration than they could on proper rehabilitation programs is, unfortunately, nothing new.  But inmates not released because the prison industry wants to use more labor? It’s getting downright Dickensian out there…

How Long Does a Texas Deferred Adjudication Stay On Your Record?

The answer: forever, if you don’t affirmatively do anything about it.

One of my new found pleasures in starting this blog is that I am starting to get emails from folks who find the site on the internet, and email me various questions. This one came from a guy in El Paso, who had completed Deferred Adjudication probation almost ten years ago, and was surprised that a prospective employer asked him why he had not admitted to being arrested for marijuana possession.

Why was he surprised? Well, the criminal defense lawyer he hired hadn’t fully explained the consequences of his accepting a plea bargain of deferred probation for his marijuana arrest. The lawyer had simply told him, “It will be dismissed and off your record”.

I hear this all the time from clients.  Probably at least once a week.

Well, here’s the bad news. You had a crummy lawyer, one that in my opinion committed malpractice by not fully advising you of the consequences of your plea. The lawyer wasn’t necessarily bad for advising you to take the plea; it very well may have been the best option available. But he should have let you know all the repercussions so you would have made a truly informed decision.

Yes, if you successfully complete a deferred probation in Texas, it’s “technically” true that the case is “dismissed” at the end of the probationary period, and you were never convicted. But that does not mean that it’s “off your record”, at least in the sense that the general public understands that phrase.

What clients are (rightfully) concerned about it this: “Will anyone ever be able to find out that I was arrested for this offense?” Because, let’s face it, when future employers (or family, friends, nosy neighbors, whoever) find out that you’ve been arrested, they assume that you are guilty. Where there’s smoke there’s fire, right?

Fortunately, the law in Texas now allows probationers who complete deferred adjudication to apply for a Motion for Non-Disclosure. While it’s not as good as an Expunction, which complete erases the arrest from your record, it’s still a good option. Basically, Motions for Non-Disclosure seal your criminal history in a way that allows the State to keep the record (and therefore knows about it if you are ever rearrested), but is prohibited from disseminating the information to the public.

America: Land of Incarceration

From Corrections Community comes this fact sheet from the National Council on Crime and Delinquency comparing U.S. incarceration rates with other countries:  

  • The US incarcerates the largest number of people in the world.
  • The incarceration rate in the US is four times the world average.
  • Some individual US states imprison up to six times as many people as do nations of comparable population.
  • The US imprisons the most women in the world.
  • Crime rates do not account for incarceration rates.
  • The US has less than 5% of the world’s population but over 23% of the world's incarcerated people.

Read the whole paper.  It's truly frightening.  Either folks in the U.S. are just more deserving of prison, or…I don’t know, are there any other possibilities?

(Hat Tip: Doug Berman)

Texas Needs to Reform Probation

It’s my pleasure (as a UT Law graduate myself) to point my readers to an excellent article in Tuesday’s Daily Texan titled “Probation may be a problem in Texas’ criminal justice system”. Kudos to Nolan Hicks and Ingrid Norton for the excellent reporting (maybe I didn’t scour the Texan enough, but honestly, I don’t remember the pieces being of this high quality back in my school days).

Scott Henson’s co-worker Ana Yáñez-Correa is quoted in the article:

"There are too many people for the officers to keep track," said Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, a prison reform advocacy group. "Each probation officer has to look at 150 cases."

Texas has longer probation supervision than any other state in the country. The profits Texas receives from supervision fees provide an incentive for the state to maintain long probation periods, Yáñez-Correa said. She said there is a reluctance to let people off their probation early, even if they have complied with supervision restrictions.

"Probation profits from those on it," Yáñez-Correa said. "They don't let people off early."

Scott himself posted about this topic earlier this week. Quoting his post from the Sunset review earlier this week:

Probation fees make up about half of local probation departments' funding, said Bill Fitzgerald, director of the Bexar County Probation Department.

Senate Criminal Justice Committee Chairman John Whitmire asked whether that economic incentive caused departments to keep people on probation longer than necessary because they needed their fees.

"Definitely," replied Fitzgerald. He said his local judges agreed that was a factor and the need for probationers' fees made them reticent to use early release mechanisms for successful probationers.

Back to the Daily Texan article:

Tony Fabelo, a prison analyst who used to head Texas' Criminal Justice Policy Council, said the whole probation system must be rearranged to give priority to supervising violent offenders, rehabilitating drug users and making sure the rest comply with probation rules. He said right now there are too many (probationers) for officers to prioritize.

"We have a probation system that in general is badly organized," Fabelo said. "It's a big paperwork processing machine. They're not supervising these people."

Fabelo noted that Texas' supervision terms of up to 10 years are the longest of any state, contributing to high caseloads. The result is that not enough attention goes to new probates. With such long supervision periods, (probationers) also have more chances to mess up, he said.

Longer probations, even for first time possession of controlled substance offenses, than any other state, so that Texas can collect more in fees.  And then, not enough caseworkers and time spent for supervising serious offenders. 

Isn't it time we moved past the knee-jerk "do the crime, do the time" reactions we see when folks suggest reforming probation?

New Sex Offender Blog

Grits for Breakfast pointed me to a very interesting new blog “Just Rants and Raves” written by a guy being supervised on a Dallas County sex offender probation. I hope to see more “probation blogs” pop up, because I think it will be instructive for everyone in the system. I’m sure that our local Austin criminal defense bar would find them fascinating. (If it’s not obvious, I’ll point out that not many defense lawyers have actually been on probation.)

The probation blogger was convicted of online solicitation of a minor, which is not listed under Chapter 21 Sexual Offenses, but instead Chapter 33 Computer Crimes of the Texas Penal Code. (Read his first post for his description of the offense, and the ensuing court case.)

One of the comments on Grits’ post asks:

So, there's a law that says you can't meet an underage person over the internet? Meeting someone underage is equivalent to statutory rape? A sex offense has been committed when 2 parties meet? Fine line to entrapment, no?

I realize we have similar laws to prevent homicides: as in you can get nailed for attempted murder by actively developing a plot to kill someone...but this seems different. You have to be looking into someone's head to apply the law.

Well, I’d encourage a reading of the statute itself, because more than just meeting someone underage is required. But, yes, it also involves looking at the defendant’s intent because it requires the element of “intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person”. Usually the state’s attempt to prove this part involves the saved conversations that have been recorded over email, instant messaging, or chat rooms.

As for entrapment? As I’ve blogged about previously, entrapment requires that the inducement by the state was of such a nature that a normally law abiding citizen would have succumbed to it, and committed the offense. I doubt a lot of jurors will publicly agree that they would have gone out and tried to meet the underage girl for these purposes (even the ones that might have).

Wrongful Imprisonment Leads to Above Guidelines Sentence???

Doug Berman points us to the two latest decisions where defendants receiving above guidelines sentences lost their appeals in federal court. Here’s the gist of it: defendants appealing higher than the maximum sentences “suggested” by the Federal Sentencing Guidelines continue to lose appeals. (On a side note, the Government almost always wins when it appeals below guidelines sentences, and "wins" higher sentences in those cases.)

In one of the cases, U.S. v. Bishop, the defendant had previously been convicted of aggravated kidnapping, burglary and rape. He was incarcerated from 1985 until 2003 on those charges, when he was released because DNA evidence proved that he was innocent of the rape charge. It was determined that he would have been released in 1995, but for the wrongful incarceration on the rape charge: an extra eight years he had to serve for an eventually reversed wrongful conviction.

The Federal District Court judge saw fit, however, to characterize the guidelines inability to further enhance his new sentence based on the overturned rape, as “a windfall from the standpoint of looking at his criminal history calculation”.

That’s right: the DNA exoneration that led to eight extra years of imprisonment was a “windfall”, because the advisory guidelines now understated “Mr. Bishop’s criminal history with respect to the seriousness of his convictions for the aggravated kidnapping and burglary charges”.

Isn’t it at least possible that had he been able in 1985 to prove his innocence on the rape charge that he may have been acquitted as well on the other charges stemming from that incident? OK, well let’s ignore that for now…

How about this one… shouldn’t some sort of downward departure be available for a guy that can demonstrably prove he unjustly served 8 extra years for his last offense?

Nope. The federal judiciary can decide that since your prior wrongful conviction is not taken into consideration by the guidelines, it can still be the basis for an upward departure… since, after all, it’s a “windfall” that the guidelines themselves don’t hold prior wrongful convictions against you.

Tort Reform vs. Sentencing Reform

A few days after I posted a comparison between the sentences for Enron’s Jeffrey Skilling and Leandro Andrade(sentenced to fifty years for petty theft with a prior), the New York Time uses Andrade as a comparison point as well.


The Times, however, was comparing the Supreme Court’s seeming eagerness to apply the Due Process clause to limit punitive damages in civil cases for corporations to its unwillingness to use the Eighth Amendment’s prohibition against cruel and unusual punishment.


The Andrade case often makes a good comparison point, because it is such a stark and obvious example of our system of overpunishment, which is then mostly applied to the poor.  An award of $79.5 million against Phillip Morris is being heard by the Supremes next week.  From the Times:


The Eighth Amendment expressly bars “cruel and unusual punishments,” which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their “due process” rights, a far greater textual stretch.


On the issue of what is “excessive” punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for “extraordinarily reprehensive” and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.


It may very well be that some jury’s overpunish corporations with excessive civil verdicts, even in cases where they deliberately hid the deadliness of their products.  But certainly some of that Tort Reform outrage against “plaintiff’s lawyers” for excessive verdicts can somehow be channeled into a movement for Sentencing Reform.

Punishing Hypothetical (Rather Than Actual) Conduct

Doug Berman justifiably criticizes a Seventh Circuit opinion today that classified “failing to report to a county jail” as a “crime of violence” for Federal Sentencing Guidelines purposes. It  makes the difference for this particular defendant of being subjected to the mandatory 15 year minimum sentence under the armed career criminal statute.

I have discussed before here and here the Kafkaesque reality that, in the federal system, prior state offenses like evasive driving can qualify as violent crimes to trigger severe sentence enhancements. Today's new Kafka chapter in this criminal history story comes from the Seventh Circuit: a split panel decided in US v. Golden, No. 06-1362 (7th Cir. Oct. 25, 2006) (available here), that a defendant's prior "failure to report to county jail in violation of the Wisconsin Criminal Code" qualifies as a "violent felony" to trigger a mandatory minimum sentence of 15 years' imprisonment under the armed criminal career statute, 18 U.S.C. § 924(e).

Well, what does the statute itself say? 18 U.S.C. § 924(e)(2)(B) defines a “violent felony” as one that:

(1)   has an element the use, attempted use, or threatened use of physical force against the person of another, or

(2)   is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

So how does this court come to the determination that failing to report to a county jail constitutes a “violent felony” for guideline purposes? It quotes from U.S. v. Franklin, 302 F.3d 722 at 733, “the benchmark should be the possibility of violent confrontation, not whether one can postulate (a) nonconfrontational hypothetical scenario”.

The decision spells out that since recapture of the defendant may involve the use of force or danger that this qualifies as a crime of violence. I side with the dissenter who pointed out that a probation violation that led to a warrant, and therefore the possibility of a violent confrontation, could qualify under this analysis as well. Do we really need to go so far as to punish people for what they might have done but didn’t? (There was never any evidence in the case that the defendant’s recapture involved any violence at all.)

Unfortunately, the time for this lament has probably long since passed, but I believe that proper statutory construction demands that the courts take into account the other four types of crimes listed, in determining whether a state offense is a violent felony. After all, how similar is “failure to report to jail” to burglary or arson or extortion or crimes involving explosives?

Interpreting statutes should also require looking at legislative intent. Any evidence that Congress believed this law would lead to this absurd result?

Cell Phones in Jail Pose "Grave Danger" to Society

The recent series of posts over at Grits for Breakfast regarding phone sytems in jails started with a nod to NPR’s recent segment called “Inmates Smuggle In Cell Phones with Ease”.

In the comment section to that post, readers referred to a Brazoria County case where a Texas inmate was given a forty year stacked sentence for unauthorized possession of a cell phone in a correctional facility.

Since I am a Texas criminal defense lawyer, and therefore familiar with our system of over punishment for minor offenses, I assumed the story was, unfortunately, not just apocryphal. One quick google search later, I find the story archived in Brazoria County’s “The Facts”. Here are quotes from the prosecutor responsible for the case, and one of the prison officials involved:

While the offense might seem minor on the surface, authorities said the phone can present a grave danger in a prison.

“You can coordinate crime from the inside out,” Brazoria County District Attorney Jeri Yenne said. “It is a significant safety issue. You can actually engineer murder from the inside and say you were (in prison).”

Darrington authorities have seized about 75 cellular phones in the last year, Warden Arthur Velasquez said.

It could lead to murder? Well, how about this: $30,000 per year to incarcerate times 40 years times 75 inmates is $90,000,000.00. Yes, that’s right, ninety million dollars. And that’s just for one of Texas’ many prison facilities.

I imagine the truth is that this particular inmate probably got on someone’s bad side to actually be prosecuted for this; I’m sure it’s not actually a regularly prosecuted offense. Still, is this what we really want our tax dollars going towards?

Jeffrey Skilling 24 Years... Too Long?

Since at first blush, it may sound odd for a criminal defense lawyer to seemingly defend the admittedly high sentence given to Jeffrey Skilling, let me make this clear from the outset: I’m talking about putting this punishment in perspective with others routinely given out to “blue collar defendants”.

Remember the 60 Minutes story on Leandro Andrade, who stole $153.54 worth of videotapes from Kmart? The Supreme Court upheld his two consecutive 25 to life sentences in Lockyer vs. Andrade.

True, in part the Supreme Court concluded this did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment because of Andrade’s prior criminal history.

But, if you find Skilling’s punishment obscenely disproportionate to the crime, ask yourself this: If we were able to combine Andrade’s lifetime of thefts, including the ones he probably never was arrested for, would the aggregate value of the victim’s losses even come close to the financial disaster that Skilling’s crimes caused?

Skilling’s convictions for fraud, conspiracy and insider trading are all, at their core, basically theft offenses. One huge theft offense, that it took several years to commit. With thousands upon thousands of victims.

Let’s focus on more appropriate(i.e. lower) punishments for repeat but small time theft offenders, before we shed any more tears for Jeffrey Skilling.

(I'm looking forward to the legal blogosphere's reaction...alos, I'll probably have more to say on the actual subject in the next few days.)

Grits for Breakfast on Inmate Jail Calls

Fellow local Austin blogger Scott Henson asks “What’s wrong with giving prisoners phone service?” Here’s one of several salient points he makes in favor of allowing or increasing inmates’ access to the outside world:

(M)aintaining family ties is critically important to preventing recidivism and facilitating prisoner re-entry after their sentence is complete. Preventing contact with families punishes children in particular (half of men and two thirds of women in TX prisons have minor children on the outside)

He follows up with a post about jail profiteering on collect calls from inmates. (Most folks don’t realize how much local jails make off of these calls, but you tell me, isn’t seven times the going rate “gouging”?). In it, he raises a serious Sixth Amendment right to counsel question:

Is county profiteering off jail calls to attorneys effectively reducing inmates' access to attorneys and inhibiting their right to counsel? Wouldn't such policies provide an institutionalized economic incentive for attorneys to minimize client communications?

I dare say he’s right, but unfortunately, it probably falls into the “there’s not much a lawyer can do about it” category. Trust me, no Texas Appeals court will ever reverse a conviction based on it. Perhaps a class action lawsuit on behalf of those families being bilked would be the right tack. But, bearing in mind that I don’t practice civil law, I doubt they would have the equivalent of standing to assert their incarcerated family member’s criminal procedure rights.

As to the situation here in Austin, I’m happy to say there’s been recent good news on this front. The Austin Criminal Defense Lawyer’s Association has recently come to an agreement with the Sheriff’s Office that the Travis County Jail will provide free calls from the Del Valle Correctional Facility to all local attorneys representing inmates. Now we just need to address those outrageously expensive collect calls home…

Dear Probation Officer: May I Get a Puppy Please?

California post conviction blog Criminal Appeal reports on an unreasonable condition of probation being stricken from a drug offender’s conditions of probation.

A California Court of Appeal has stricken the pet-portion of a probation condition requiring a defendant convicted of possession of methamphetamine to “[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty four hours prior to any changes.”  (Emphasis Added)

The majority opinion decided that the condition was overbroad and did not relate to the offender’s reason for being on probation in the first place. As in Texas, California courts can add any reasonable condition of probation.

The lone dissenter argued that the rule wouldn’t allow the probation officer to veto the defendant’s decision to get a pet; but I would argue that it does(above and beyond just being a stupid rule). 

My wife got our dog in a park, abandoned as a puppy. If she had been on a Travis County Probation, and subject to this condition, she wouldn’t have been able to give 24 hours notice. Taking the pup home from the park would theoretically subject someone to jail or prison, as a violation of their probation. Folks…can’t we have some common sense, especially when we are talking about drug offenses?

The difference between probation and parole

The difference between probation and parole is enormous, although some people use the terms interchangeably. (Journalists often have an unfortunate habit of falling into that category.)

While there’s more to it than this, the short version is: probation means the judge orders someone to report to some form of supervision immediately, and if they don’t follow a fairly lengthy set of rules and regulations they are subjected to going to jail or prison. Parole is a form of supervision granted to defendants, either after their full prison sentence is complete, or, as in Texas, in lieu of finishing their entire sentence.

Again, probation: supervision as the penalty itself; and parole: a period of supervised release after being incarcerated.

Three types of jails and prisons in Texas

There are three types or categories of jails and prisons in Texas: county jail, state jail and prison. Offenders convicted of Class B and Class A misdemeanors are sentenced to county jail, those convicted of State Jail Felonies are sentenced to state jail, and those convicted of Third Degree Felonies or higher are sentenced to prison.

Absent unusual circumstances (capital murder), the judge usually has the option of probating the sentence, placing the defendant on community supervision, and requiring the person to comply with the many conditions that probation entails. The penalty for violating the terms of probation, however, include serving up to the maximum sentence available for the offense.