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.

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.