“Modifiability”: David Eagleman’s Gift To Criminal Justice

I read a lot of books in my spare time.  My television time is, by design, quite a bit less than my reading time.  Some of the books I read are not so great, and some of them are pretty good.  Every now and then I find a book that is excellent.  Neuroscientist David Eagleman recently published such a book called Incognito- The Secret Lives of The Brain. It is a work of non-fiction, and it is one of the few non fiction books that I’ve read where I could not not stop reading it, even after I was tired.

After I read the whole book, which was a few months ago, I had the opportunity to meet Dr. Eagleman and hear him speak to a group of people who have an interest in neuroscience.  I was not disappointed.

David Eagleman is that rare combination of scientist, creative genius, and showman.  His speaking skills are as good as his writing skills, and he has a charm and humility about him that makes it hard not to like him.  I only wish I could have spent a couple hours with him, instead of a couple of minutes when I had him sign my copy of his book.  I would have loved to discuss how his work, and the work of the neuroscience community in general, might someday change how society deals with crime and the important task of punishing and rehabilitating criminals.

Although the entire book is really well worth reading, my interest as a parole attorney here in Texas was really fascinated with Chapter 6 of the book, titled, Why Blameworthiness Is The Wrong Question. After personally interviewing several hundred convicted felons over the last few years, I had already arrived at some of Dr. Eagleman’s conclusions, but I had no idea why I felt the way I did, until I saw how he explained what happens in the brain that triggers the overwhelming majority of criminal behavior.

As I read Dr. Eagleman’s words, it was as if he was eloquently expressing many of my disorganized inner hunches and validating my gut instincts about criminal behavior and the ways in which our present methodology of criminal punishment and prisoner rehabilitation misses the mark so badly.

Dr. Eagleman is a respected neuroscientist at Baylor College of Medicine.  His scientific research has been published in journals such as Science, and Nature. He has some pretty insightful conclusions, based on the growing body of cutting edge neuroscience research.  I have to wonder how long it’s going to take society to catch up to the scientific insights already so well understood by Dr. Eagleman and his peers.

I could never do justice to Dr. Eagleman’s book here in this blog, even as it relates to the chapter on blameworthiness.  However, a couple interesting quotes from Chapter 6 ought to give you a basic understanding of his thoughts about criminal blameworthiness, and what we should do about it  :

“The question of free will matters quite a bit when we turn to culpability.  When a criminal stands in front of the judge’s bench having recently committed a crime, the legal system wants to know whether he is blameworthy. After all, whether he is fundamentally responsible for his actions navigates the way we punish.  You might punish your child if she writes with a crayon on the wall, but you wouldn’t punish her if she did the same thing while sleepwalking.  But why not?  She’s the same child with the same brain in both cases, isn’t she?  The difference lies in your intuitions about free will: in one case she has it, in the other she doesn’t”…

“I propose that the answer to the question of free will doesn’t matter–at least not for the purposes of social policy–and here’s why.  In the legal system, there is a defense known as an automatism.  This is pled when the person performs an automated act–say if an epileptic seizure causes a driver to steer into a crowd. The automatism defense is used when a lawyer claims that the act was due to a biological process over which the defendant had little or no control.  In other words, there was a guilty act, but there was not a choice behind it….”

“Before moving into the heart of the argument, let’s put to rest the concern that biological explanations will lead to freeing criminals on the grounds that nothing is their fault.  Will we still punish criminals?  Yes.  Exonerating all criminals is neither the future nor the goal of an improved understanding. Explanation does not equal exculpation.  Societies will always need to get bad people off the the streets.  We will not abandon punishment, but we will refine the way we punish…”

I cannot begin to do justice to Dr. Eagleman’s argument, but suffice it to say that he asks a deeper question than the superficial one that is asked today.  Dr. Eagleman indicates that,

“There is no meaningful distinction between his (the criminal’s) biology and his decision making.  They are inseparable…the criminal activity itself should be taken as evidence of brain abnormality, regardless whether currently measurable problems can be pinpointed….So, culpability appears to be the wrong question to ask.“

Dr. Eagleman looks forward to the future, rather than backwards at the crime itself.  He asks how a criminal’s brain and his decision making skills, including impulse control, can be permanently modified, for the better.  The remainder of  Chapter 6 of Dr. Eagleman’s book argues that “modifiability” is a much better question than “culpability” especially once a society’s bloodlust for exacting punishment is under control.  After all, an extremely high percentage of criminals are eventually released.  The manner in which their brains function following release from prison becomes far more important to public safety than whether they previously committed a crime.

So, “modifiability” becomes much more relevant than “culpability” because culpability concerns itself with what happened, and modifiability concerns itself with making sure bad things don’t happen in the future.  This is a shift that would allow the petty criminal to be modified before he graduates to the big leagues, and it would take the big league criminal and retire him from the game before he becomes even worse.

For those who cannot be modified?  Dr. Eagleman admits that there will be some of these people too.  The long term warehousing of prisoners may still be the only way to handle these people.   For most, however, meaningful rehabilitation would result, perhaps without the costly and unreasonably long sentences that are the norm today.

Hope springs eternal.  Good luck to Dr. Eagleman and other neuroscientists!  Their work could someday make our prisons better, and our society safer and more enlightened.

Six Parole Hearings In One Day, But One Stands Out

Today was, well, pretty unusual for me.  I had six parole hearings in one very long, very interesting day.  I cannot remember a day when I had more than three hearings.  The good news is that I’m pretty sure a good number of the clients made parole.  Yet, I am saddened that the guy who was probably the most deserving of the six will likely not make it this year.

Why?  It’s simple…I’m 90% sure that there was a protest on file from the victim’s family.  It’s not really important why I know there was a protest, suffice it to say that the Board is not allowed to divulge whether there is a protest.  Nonetheless, I’m pretty sure I’m right.  The sad thing is that, in my opinion, a parole protest pretty much guarantees that the Offender gets denied parole.

When a protest is filed, my experience is that the Board takes the path of least resistance most, if not all of the time.  That path is called “Parole Denied”.

This is a scenario that needs to be reformed.  I’m going to figure out a way someday to get the Board to release the data so that I can prove that a protest equals parole denied. I’m really not sure who’ll listen to me when I can prove I am right, but it’s an injustice that really needs to stop.

Happy Thanksgiving!

This year, as I give thanks for all the things in life that mean so much to me, I cannot help but wonder how many prisoners are sitting in Texas prisons, missing their families and feeling pretty low.

The holiday season may be less of a blessing for an inmate than for the rest of us.  Does the inmate get to spend quality time with family and loved ones?  Does the inmate get to taste the delicious foods and inhale the smells we’ve all come to associate with the holidays?  For the most part, the answers to these questions is a resounding”No.”

If crime demands punishment, I wonder if anyone in the executive suite over at TDCJ headquarters has ever entertained the notion that sometimes, those who are being punished ought to be shown a little mercy.  Like during the holidays, perhaps.

There are over 156,000 people incarcerated in the sprawling TDCJ prison system.  I wonder how many of them will have family come to see them this Thanksgiving weekend. I also wonder how many will be denied contact visits.  Not conjugal visits, they’re not likely to happen in TDCJ, at least during my lifetime.  I’m talking contact visits.  The kind where the prisoner can hold the hand of his wife or girlfriend.  The kind where the inmate’s brother can hug him and tell him that he loves him.  The kind where the child that barely knows her father can sit on his lap and laugh as he nibbles on her neck.

Whenever society cares to take a closer look at the purpose and role of prisons in our society, perhaps we can get down to the serious business of rehabilitation and self improvement, rather than the outdated, ineffectual model that is overwhelmingly focused on punishment only.  There’s a little food for thought to go along with the turkey and gravy.

Happy Thanksgiving.

The Immigration Detainer Dilemma

There are over 10,000 inmates in TDCJ who were not legally in the U.S. at the time they were sent off to a Texas prison.  The vast majority of these Texas offenders are originally from Mexico.  I have represented several of these men in my law practice.  Virtually all of them have immigration detainers that subject them to a deportation proceeding upon release from TDCJ.  Recent press out of Washington D.C. suggests that the President wants to make sure that illegals who are convicted of a felony be placed at the front of the line for deportation by immigration authorities.  Thus, if the policy is followed, it is almost certain that all such offenders will be deported upon release from TDCJ.

The President’s desire to put convicted felons at the head of the deportation line is not particularly surprising.  However, there are a few details of this plan that ought to be considered more carefully.

First, some of those classified as “illegal”, grew up here in the U.S. and went all through our public school system.  Some of them do not even speak the language of the country from which their parents (illegally) emigrated.  Moreover, some of these same people had families of their own, and excellent work records prior to being incarcerated.

Second, if a guy is released and (presumably) sent to another country prior to the end of his sentence, there is virtually no ability to supervise him on parole.  Unfortunately, I suspect this fact leads most parole officials to leave illegals in prison longer than those who were born here in the U.S.

I personally believe that it’s also important to identify whether there are family support systems in place in the country to which we intend to deport these people.  If there are no opportunities and no support system in the receiving country, but there is a good support system here in Texas, the person in question might simply be willing to risk coming right back into the U.S. rather than be alone in a “foreign” country, with their very survival in question.

“Felony” is a broad category of criminal behavior.

Some felonies are, well, serious matters.  Others, not really.  No kidding.  A DWI is a felony (if there are two prior DWI’s at any time in a person’s life).  I’m not ignorant to the perils of drunk driving, but I also see the difference between beating, shooting, or stabbing  a man for his wallet and having that double scotch on the rocks at the company’s annual holiday social function.  In fact, we’ve got over 2,500 felonies on the books, and more enacted every time the legislature gets together.  Some felonies are pretty much the result of politicians trying to look like they are tough on crime, when the behavior at issue could very well have been classified as a misdemeanor at a different time in our history, or in a different jurisdiction.

Another way that a person can end up with the label “felon” is through the legal doctrine known as the law of parties.  Here’s how the Texas Penal Code defines it:

Section 7.02 of the Texas Penal Code outlines the following:

A person is criminally responsible for an offense committed by the conduct of another if “acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids or attempts to aid the other persons to commit the offense” or “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Ok, if that confuses you, no worries.  It basically means that you can get in big trouble if you’re hanging out with the wrong people.  One of my favorite law school professors, Gerald Reamey, said something to my first year criminal law class that really stuck with me.  ”If you don’t learn anything else in this class, you will learn that it’s extremely important to choose your friends carefully”.

So, what do we do about the immigration detainer dilemma?  I suspect that the Board of Pardons and Paroles simply leaves most of these people in TDCJ for most, if not all, of their sentences, irrespective of most other factors.  Then, at the end of this expensive taxpayer funded enterprise, the guy gets the boot, and we may or may not ever hear from him again here in the U.S.

We really have no perfect solution for the immigration detainer dilemma.  However, the issue is worthy of further study.  Perhaps we can find some solutions as the state grapples with cost, and the Feds get tougher and tougher on illegal immigration.

Board of Pardons and Paroles Issues “Self-Evaluation Report”

Although it wasn’t widely publicized, the Sunset Advisory Commission is supposedly looking at the BPP to determine if the Board should be allowed to continue to exist. Now, before anyone decides that it’s insane to even ask such a question, fear not.  Sunset review is not a sign that there is anything strange going on.  It’s something that applies to all state agencies.

In case you have no idea what the Sunset Advisory Commission is (don’t worry, very few people do), here’s what their website homepage, (www.sunset.state.tx.us) says they do:

“The 12-member Commission is a legislative body that reviews the policies and programs of more than 150 government agencies every 12 years. The Commission questions the need for each agency, looks for potential duplication of other public services or programs, and considers new and innovative changes to improve each agency’s operations and activities.”

It’s that last part that caught my attention.  I’m curious what, if any, “new and innovative changes” are being discussed to improve the operations and activities of the Board of Pardons and Paroles.

According to the Commission’s website, the Board is “under review” along withthe rest of TDCJ, from September, 2011 through March or April of 2012.  The Commission seeks public input through hearings on every agency under Sunset review and recommends actions on each agency to the full Legislature.  I will be looking more closely at the input they receive, if any, more closely in the weeks to come.  To kick off the sunset process, the BPP has recently released its “Self Evaluation Report”, and I printed and bound my copy of said report yesterday.  Although I have not yet had the time to read the report thoroughly, I am already really glad I took the time to print it.  As I see it, the more information I have about every single aspect of the Texas prison and parole system, the better I am able to do my job representing inmates who seek parole.

Here’s a few of the major points that I’ve gleaned thus far:

1.  The Board reviewed over 78,000 people for parole, and nearly 19,000 people for Discretionary Mandatory Supervision in the past year.  These two groups are not mutually exclusive, and the number of reviews in both categories is slightly higher than in recent years.

2.  The percentage of inmates who received a favorable vote in both parole and discretionary mandatory supervision cases was approximately 1% higher than the previous year.

2.  The Board also reviewed approximately 29,000 parole revocation cases, and considered modification of parolee special conditions in approximately 86,000 instances, all in one year.

I was particularly interested in the Board’s description of some of the ongoing litigation involving parole rules and policies, and a couple of these areas provide fertile ground for future blog posts.

You can expect to see follow up blog posts as the sunset review process takes place. Although the ongoing “sunset review” process is almost certainly not going to result in a recommendation that the Board be abolished, there could very well be some recommendations for improvement of the processes, policies, and means of performing its very important function within the state’s criminal justice system.  I’ll be watching everything carefully, and it ought to be an interesting process.

Parole Commissioner James Kiel Moves To San Antonio

Parole Commissioner James Kiel has been with the Board of Pardons and Paroles in the Palestine Board Office for the past 7 years.  He will officially begin voting parole cases out of the San Antonio Board Office very, very soon.  Perhaps even this week.

Kiel replaces Edgar Morales, who retired from the Board on or about September 1, 2011. In an earlier blog post, I guessed it would be approximately 6 to 8 weeks before the Board filled Morales’ newly vacated position.  Looks like my estimate wasn’t too far off.

I am not yet aware of who replaced Kiel up at the Palestine Board Office, but I will make it a point to find out.  Hopefully, Kiel’s replacement up in Palestine is already in place and is voting cases.  It would be a shame for there to be a two month gap in San Antonio and Palestine.  The time without Morales in San Antonio the last couple of months undoubtedly placed a strain on Board Member Juanita Gonzales and Parole Commissioner Charles Speier.

Kiel, James Paul Jr.

• ASSIGNMENT: Palestine
• EMPLOYED: 2004
• EDUCATION: Bachelor of Science in Criminal Justice, Sam Houston State University, Huntsville, Texas.
• BACKGROUND: Over 20 years experience with TDCJ-Parole Division, serving as a Parole Officer, Unit Supervisor, and Assistant Regional Director; over 3 years experience with the Texas Dept. of Corrections as a Correctional Officer and Sociologist.

Update to “When The System Doesn”t Work”

He made parole!!!!  Thank God!  He received a vote of FI-1 on his first parole review.  I cannot wait to give him a big hug!!!  His name is Luis, he is a good man, and the system just worked.  I am really proud that I played a role in  helping him get his life, and his dignity back.

Justice, Jack Skeen Style

At the top of my blog, I ask the question, “Is it too much to expect that the punishment fit the crime?” It’s a reasonable question, right? I placed this question at the top of my blog because far too many prison sentences in Texas are inappropriately long when compared to the criminal behavior at issue, and that’s a tragedy that is rarely the subject of any real scrutiny or discussion. It also happens to be an enormous waste of taxpayer dollars.  We flush $20,000 down the toilet every year on thousands of individual sentences of 10, 20, 30, or 40 years when the the harm caused by the crime was minimal or even non-existant.

Most judges get it right, most of the time. Really. Even the ones who campaign to the voters as being “tough on crime” are usually still fully aware of the power they wield over the lives of those who stand before the bench waiting to be sentenced. But getting it right most of the time is hardly something to celebrate. It ought to be the goal of every judge to get it right all of the time. After all, these are people’s lives we’re talking about here.

Yet, in the heat of the moment, when a judge is tired or frustrated, it would behoove many judges to carve my simple question into the backside of those wooden nameplates we see on important people’s desks, and then place it on the bench directly in their line of sight. That way, it would be impossible for the judge not to read the question each and every time he is about to hand down a prison sentence to the accused. “Is it too much to expect that the punishment fit the crime?“

Don’t get me wrong here, I am fully aware that crime usually deserves punishment. However, it’s just a little too easy for some Texas District Court judges to punish people in an excessive manner, especially given the broad range of punishment available under the Texas Penal Code.

When one person who wears a black robe has carte blanche to choose a number out of the sky between 5 years and 99 years, and then it becomes nearly impossible to modify that number, we ought to pause and think about what we’ve created, especially if you are entrusting such power to a mean-spirited jerk. Or, even where the judge is not cruel or vindictive, he might pick a harsh sentence while he’s having a really bad day. Watch out if he’s been sentencing people for so long that he’s become immune to the human consequences of his decisions. Which brings us to Judge Jack Skeen of Smith County (Tyler), Texas.

According to the Wikipedia entry for Smith County, the county has the dubious distinction of having an incarceration rate that is twice the average rate for the state of Texas. Are people in Smith County twice as bad as the people in the rest of the state? I doubt it. Moreover, Smith County has been widely criticized by many as being a very corrupt place when it comes to the prosecution of criminals. Just ask Kerry Max Cook what he thinks of the place. Google this guy and look at what happened to him as a result of the Smith County criminal justice machine.

A good friend of mine, who shall remain nameless here in this blog, is an excellent attorney who also happens to practice law in Smith County (Tyler), and has done so for nearly two decades. He summed it up for me very simply by saying, “If you’re black or hispanic in Smith County, and you’re accused of a crime, you’re totally screwed.” Kerry Max Cook was white, so I can only imagine how many times minorities have been on the receiving end of Smith County “justice”.

I had never previously examined any of the accusations of impropriety in Smith County, although it does not surprise me that those who are entrusted to dispense justice might get carried away sometimes, especially in a smaller county like Smith County. People in Texas generally like to see themselves as “conservative” or “tough on crime”, except when they’re talking about their own interests. Incidentally, that’s pretty much the campaign mantra of a whole lot of judicial candidates in Texas, including the Honorable Judge Skeen. They all say pretty much the same thing: “I’m tough on crime, I’m conservative, so elect me to be your judge”. Sounds great, until it’s your brother, your cousin, your dad, your friend, or even you that is up there begging to keep your ass from being locked away forever.

Even in the “lock ‘em up and throw away the key” counties, one would still hope that the judge would be mindful of the need to punish in a manner that corresponds with the nature and degree of the crime, the facts of the case, and any other detail that is relevant,without regard to the race or ethnic background of the accused. That is, afterall, what we’d want any judge to do before locking anyone up and throwing away any of the proverbial keys.

I met a man last week who seems to have suffered a terrible injustice at the hands of Judge Skeen. He is black, and maybe that was a factor that worked against him, especially in light of the comment made by good friend, the lawyer up in Tyler. As I sat and listened to the man tell me how he ended up in prison, it made me sick to my stomach. Judge Skeen’s courtroom up in Smith County appears to have been the scene for a terrible, terrible injustice. It’s a scene that this man is not likely to forget.

He originally accepted a plea agreement for 10 years deferred adjudication probation. He really had reservations about accepting the plea agreement, but there is no doubt that he did, in fact, accept the plea deal.

He was charged with a trumped up felony that was basically a load of bull, if anyone other than the prosecutor (and his court appointed lawyer?) had bothered to look at what was going on. He definitely could have been charged with trespassing, or maybe even misdemeanor assault.  Instead, they hit this guy with something that was such a stretch under the Texas Penal Code that it’s laughable.

He had a prior felony drug possession charge about 10 years earlier, and Jack Skeen was the District Attorney who prosecuted him.  When you’re under the microscope, the first thing cops, prosecutors, and pretty much everyone else in the business of criminal justice looks at is whether you have any “priors”.  This guy did, and I am pretty sure this fact hurt his chances of being treated fairly.

He didn’t feel like Skeen was going to be very fair, but he was still pretty upset that he had to plead guilty about something that he didn’t do.

What he actually did do, that was still probably a minor crime,  is this: He got into a physical confrontation with a man who was taunting him, challenging him to a fight, and who also happened to be having frequent sexual encounters with his wife while their marriage was falling apart.  There were no weapons used, and fortunately, nobody was injured.

The prisoner entered the plea, went home, and then changed his mind.  He tried to go back to court and ask for a trial.  Judge Skeen was not amused.  Needless to say, he didn’t get his trial.  So far, no real surprise.

Then, the man decides, as a form of protest in not being given his day in court, that he is not going to report to the probation officer as required.  Stupid move, for sure!  After failing to report to the probation officer two months in a row, a motion to revoke his probation is filed.

He ends up standing in front of the judge, the Honorable Jack Skeen, Jr. that is.  Judge Skeen is mad, and wants to know why the heck he didn’t follow the rules and report to the probation officer as ordered.  The man says, in front of a bunch of people in the crowded courtroom, that he had changed his mind on the plea agreement, and he still wanted his day in court.  He also says that it isn’t fair that he had to plead guilty to something he didn’t do.

Judge Skeen looks at him, and without really thinking everything through, decides to sentence him to 50 years in prison in the Texas Department of Criminal Justice.

50 years!!!!

I’ll ask it again: “Is it too much to expect that the punishment fit the crime?”

Judge Skeen is, by some accounts, an asshole. Being an asshole is not a crime, so Judge Skeen will not be punished, in this life anyway. However, being an asshole is generally not a good thing to be if you’re expected to be fair. Last time I checked, “fairness” is a quality people like to see in a judge, even in Smith County, I would imagine.

This man’s story is all you need to see to in order to know why it’s probably not such a good idea to have a punishment range of 5-99 years for so many crimes in the Texas Penal Code.

New Law To Crack Down On Arguing While Intoxicated

Now that September 1 has finally come and gone, several new laws that passed during the recent legislative session are now in effect.  Perhaps the most interesting law passed is the one that makes it a Class A Misdemeanor to have an argument while one is legally intoxicated.

What, you haven’t heard about this law yet?  Well, you just haven’t been paying attention.  It has been the subject of a great deal of debate, but the debate will no longer be permitted to take place over a pitcher of cerveza.  Well, maybe one pitcher is okay for the debate, but two is really pushing things…

Ok, I am just kidding.  There is no new law in Texas that makes it a crime to argue while intoxicated. However, sometimes it seems like it wouldn’t be such a crazy idea.  Lots of the more serious stuff that is considered serious criminal behavior takes place once you get the ethanol and testosterone cocktail flowing through the brain.  The “guns are a good thing” crowd hasn’t quite figured out how to spin this unpleasant fact of life just yet.  Yes, drunk people probably do have lousy aim, but from 5 or 10 feet your aim isn’t usually a big concern.

Last time I checked, there are over 2,000 different felonies under Texas law.    Every two years there are a few more added to the list.  If you are drunk, or high on some of the more, umm, anxiety and paranoia inducing drugs, your odds of committing one of the 2000+ felonies increase dramatically, especially if you are male.

I can’t remember the last time a felony was de-criminalized.  You’d think something, anything, would become less of a big deal over time and become a non-crime. Okay, maybe sodomy makes the short list here, but…

With so many crimes on the books that can be committed even while being stone sober, just imagine how easy it becomes once a person is 3 sheets to the wind or after 2 days of meth or crack induced sleep deprivation.

I really like the old fashioned police practice of hauling the drunks off to the drunk tank and simply letting them go with a small fine and some aspirin once they’ve sobered up.  At least a public intoxication charge is as far as it would get in such situations.

If we made “arguing while intoxicated”, or “AWI” a crime, we could also have MADA”  or Mothers Against Drunk Arguing.  After a while, MADA could get organized and they could get the crime turned into a felony by showing everybody pictures of all the people who got killed or injured following the stuff that happens when drunk people argue.  Those pictures would be pretty gruesome at times.

Although this post may seem silly, I do think that substance abuse tends to mix very poorly with arguments, especially when men are the ones abusing the substances.  I’m not sure what the solution is to this serious issue, but since putting people in prison seems to be such a popular solution (that, by the way, rarely succeeds), I’m not sure that having another new crime, AWI,  would do much good.  It is possible that such a law would prevent or reduce the possibility of more serious crimes  taking place.  Of course, it would also give legislators more “tough on crime” stuff to brag about.  They like having that.

Parole Commissioner Edgar Morales To Retire

Edgar Morales, Parole Commissioner in the San Antonio Board Office of the Texas Board of Pardons and Paroles, is leaving his position.  He has been a Parole Commissioner for approximately 5 years.  Yesterday was his last official day on the job.

Morales, a former U.S. Marshal, Chief of Police, and U.S. Army Special Forces veteran, also holds a Master’s Degree in business administration.  He will be greatly missed by the Board.  According to reliable information, Morales is an extremely qualified, dedicated, and hard working Parole Commissioner who is liked by everyone in the Board office where he has worked during the past five years.

Although I wasn’t always happy with his voting decisions, I respected the difficult job Mr. Morales had to perform.  I personally found him to be diligent, open, honest, and willing to look at things from different perspectives.   Although he has a stern and serious demeanor, he also has a sense of humor and is sensitive to the human consequences of crime and incarceration.

If history is any guide, it will take at least 6 weeks, maybe 8, before a replacement will be hired and will be in a position to vote cases. This delay poses several interesting questions.

First, will having just 2 voters in the San Antonio Board Office mean that there will be a voting delay for offenders incarcerated in the prisons that are voted out of the San Antonio region?

Second, how can the two remaining voters, Board Memeber Juanita Gonzalez and Parole Commissioner Charles Speier, ever really disagree on a vote in the meantime?  In other words, if the 2 remaining voters should wish to disagree on a parole vote, will they disagree?  If they do, who will break the tie until the new Parole Commissioner is on board?

Finally, in the time it takes to fill Morales’ newly vacated position, is it fair to assume that the parole reviews will be even more hurried and superficial than the unacceptable statewide status quo? I have often said that despite the very best efforts of the Parole Board Members and Parole Commissioners, the amount of time dedicated to the consideration of Offenders for parole is shockingly low.  This is really an inevitable consequence of the way the system is set up and funded, not because of anything the voters can do to change it.

As Edgar Morales begins the next chapter in a life and career that has exemplified public service and hard work, the Texas Board of Pardons and Paroles has some very big shoes to fill.

Parole Board Member Charles Aycock Retires, Governor Appoints Replacement

I’m sure Charles Aycock has a lot more free time than he did a month ago.  I learned about a week ago that he retired and his replacement on the Board of Pardons and Paroles has already been appointed.

I will miss Mr. Aycock.  Not because he always voted the way I wanted him to, he didn’t.  I will miss him because it was obvious to me that he cared very deeply about his duties, and he was genuinely interested in hearing and understanding the information that I provided to him about my clients.  He wanted to make sure he knew as much as possible about theperson who committed the crime, as well as the crime itself.  To me, that says an awful lot about Mr. Aycock’s integrity, professionalism, and that he really understood the important role of the Parole Board in the criminal justice system.

Charles Aycock was appointed to the Texas Board of Pardons and Paroles in March, 2004.  I also recall that Mr. Aycock was the President of the State Bar of Texas back around 1998, when I was a newly licensed attorney.  When I met him in connection with his role as a Parole Board Member, I was pleasantly surprised at how humble and friendly was.

I hope that Mr. Aycock enjoys the next chapter in a life that has already been filled with many honors and distinctions.  I, for one, am sad to see Charles Aycock leave the Parole Board.

When The System Doesn’t Work

I am currently representing a man, a really good man, who is sitting in a Texas prison. He’s been there for a couple of years now.  I’m trying to make sure that he receives a favorable parole decision from the TDCJ Board of Pardons and Paroles, at the earliest possible date.

If my efforts are successful, I will feel really, really good about it. However, the wrong that has already been done to him will always follow him.  His story demonstrates the  danger of prosecutorial abuse of power in our criminal justice system, and the dangers of selecting an unethical criminal defense lawyer.

I’ll call my client “Al”.  Although Al is incarcerated, it is my humble belief that the prosecutor and the defense lawyers who were responsible for making sure that Al is now in prison are much more deserving of prison.

The improper prosecution of Al took place right here in San Antonio, Texas, a few years ago.

If you are one of those people who thinks that prison only happens to other people, other “bad” people, you really ought to read the story of how Al ended up becoming a convicted felon, who is now living as a prisoner in one of TDCJ’s 120 prisons.  Moreover, if you’re one of those people who thinks the prosecutor always wears the white hat, and the defense lawyer wears the black one, you really need to keep reading.  There weren’t many white hats to be found in Al’s criminal prosecution.

Al is in his late forties.  Until a few years ago, he’d never been arrested or convicted of any crime, ever.  He also swears that he’s never used any illegal drugs.  When he was younger, Al served our country by being an active duty member of  the United States Army.  He joined after he graduated from high school.

As a Staff Sargeant, Al was deployed to Kuwait/Iraq, twice.  After more than 20 years of dedicated service, and plenty of sacrifice, Al left the Army.  He didn’t really want to leave, but he had developed some problems as a result of some of the things he had experienced in combat, and he’d reached the point where it just made better financial sense for him to retire from the military.  He was honorably discharged, and he left the military diagnosed with post traumatic stress disorder, or PTSD.

Al’s PTSD has nothing to do with why he is in prison.  Instead, Al’s love, his honor, and his sense of loyalty is really to blame.  Oh, and the prosecutor, who I hope and pray is no longer a prosecutor.

I mention the PTSD only because Al’s PTSD is pretty severe, and the VA provided counseling and medical treatment for Al’s PTSD prior to Al being incarcerated.  As you might guess, Al isn’t getting any treatment for his PTSD in the Texas Department of Criminal Justice, even though they have a copy of his medical records from the VA, and Al has asked for help, particularly the medications he used to be prescribed so that he could sleep.  But that’s not the point of this story.  Perhaps a future blog post will highlight the, umm, excellent medical care given to Texas prison inmates.  Anyway, back to Al’s sad story.

After he left the military, Al settled in San Antonio.  Eventually, he met a woman and married her.   She had 3 sons, and an ex-husband who didn’t really embrace the concept of paying child support to one’s ex spouse.  The older two boys were already teens when Al came into their lives, and the youngest boy was in elementary school.

Al did his best to help raise the boys.  He bought a house with as many bedrooms as he could afford using his VA loan eligibility, and he used his paychecks to support his wife and 3 step children.  But, as Al describes the situation, the older boys were pretty much delinquents by the time he entered their lives.  Whenever he’d try to instill a sense of morals, or pride, or discipline, the older ones disregarded or mocked their step father and thoroughly defied him on a regular basis.

Needless to say, the bond Al developed with the older boys was not particularly strong.  He had to be content with being a father figure and a positive role model to the youngest boy, who seemed much more malleable.  He grew to love the boy, even as his relationship with the other two boys grew worse and worse.

When the oldest boy moved out of the house, Al’s house, Al admits that he was actually somewhat relieved.  The pretty criminal behavior and the rotten attitude of the older 2 boys had been a constant source of friction between Al and his wife.  According to Al, she was one of those mothers who never seemed to think her kid did anything wrong.  You know the ones I’m talking about.  It’s always someone else’s fault that their son is in trouble or is screwing up his life.

I call those moms enablers.  There are quite a few guys in prison who have moms like that, which is yet another interesting topic for a future blog posting.  Anyway, back to Al.

Al was hoping that, with delinquent #1 out, and the upcoming departure of delinquent #2 from the house, there just might be hope for a restored  sense of peace in Al’s home, and his strained marriage.

THE CRIME THAT LANDED AL IN A TEXAS PRISON

On Al’s wedding anniversary, he had made a reservation at a really nice restaurant and he’d bought his wife flowers.  He couldn’t wait for her to get home from work so that they could have a special night together.  They had a rocky marriage, and Al was really trying to get their marriage to a better and happier place.

In the late afternoon on the day of Al’s date with his wife, Al was playing a video game with the youngest boy, who was now 13.  All of a sudden, the oldest boy unlocked the front door with the key he wasn’t supposed to have, ran into the house, went straight upstairs, and closed the bedroom door in the room in which he used to live.

Al thought this was very strange.  There was no good reason for the unexpected visit by the oldest boy, and his behavior just seemed suspicious.  Within a couple of minutes after Al’s step son arrived at the house, he was gone again.  Out the door, into his car, then vrrrroooom, away he drove.  Not even a “Hi” or “Bye”.

Al went upstairs, opened the door to the room, and looked carefully at the room.  He noticed that the closet door was open, and he peeked inside.  There was a trash bag with some dirty clothes.  Al was pretty sure that the bag was not there earlier.

He inspected the bag of dirty clothes and found a bag of cocaine inside.  It wasn’t a small bag either.  Al was really angry, but he didn’t know exactly what to do about the situation.  However, he knew that he wanted to wait until the next day to show his wife what he had found and to confront his step son at that time.  After all, it was their anniversary, and he did have a special evening planned.  Why ruin it over yet another instance of the step son’s improper delinquent behaviors?

Al reasoned that his wife was in so much denial about her eldest son that he needed to show her the evidence rather than simply allege that he’d found drugs.  He also feared that if he flushed the drugs down the toilet, his step son might be at risk of being hurt or killed if whoever gave him the drugs had done so on credit.  So, he took the bag of cocaine out of the step son’s former bedroom, and placed it in the top drawer of his own dresser, under some socks.

His wife came home soon thereafter, and the couple soon went out to the nice restaurant for their anniversary dinner. Unfortunately, they never even got to enjoy their meal.  As they were waiting for the food to arrive at their table, Al’s mobile phone rang.  It was the police calling, telling Al that he needed to get home immediately.

When Al and his wife arrived, the police had all 3 of Al’s step sons handcuffed, laying face down on the living room floor.  His front door was broken off the hinges.  The police battering ram was on Al’s front porch, and there were cops everywhere.  The police were already executing a search warrant of the premises.  Al asked why they had a search warrant, and the police officer told him that they had strong evidence that Al’s stepson was selling drugs, that they’d been following him, and that they believed he was using Al’s house to store his drugs.

A little while later, the bag of cocaine was found.  Of course, the delinquent stepson denied any knowledge of the drugs.  He then invoked his constitutional right to remain silent  Al decided to remain silent also, since he didn’t want to get the son into any more trouble than he already was in.  So, the police decided to arrest the stepson AND Al.  The police detective told Al’s wife that she was lucky that they didn’t arrest her too.

Al’s wife hired a lawyer, but she couldn’t afford two lawyers.  Despite a blatantly obvious conflict of interest, the lawyer went forward representing Al and the stepson.  Al told the lawyer everything about the stepson being the owner of the drugs, and the lawyer knew that the police got the search warrant because of the stepson in the first place, which supports Al’s claims 100%.

After months of “work”, the lawyer advised Al that he should plead guilty and that the Judge would give him probation.  Al’s wife,  soon to be his “ex-wife” begged him not to say anything to the Judge about the stepson being the true owner of the drugs.

The lawyer hired by Al’s wife got his “friend”, another lawyer, to go to court and get Al his probation plea agreement.  Al didn’t understand why a different lawyer went in to get him probation, but he was mad at both of them.

Al felt, rightly so, that the prosecutor ought to drop the charges against him, and that the prosecutor and the police had plenty of evidence about who was really responsible for the drugs being in the house.  He also asked his lawyer why the prosecutor wasn’t interested in the truth.  He was told that he was NOT to speak to the Judge or the prosecutor, lest he make his situation worse.

Unfortunately, the prosecutor was hung up on the fact that the drugs were found in Al’s dresser, rather than on how the drugs got into the house or even who the suspected criminal was in the first place.

The lawyer scared Al into taking a plea deal, allegedly a plea deal for probation.  He told Al that if he went to trial and lost, he’d likely get much worse than probation.  Al was scared, angry, and he reluctantly trusted in his lawyer’s advice and counsel.  Big mistake.

The plea deal that was supposed to be for probation was signed by Al, but much to his shock, horror, disgust, etc., the Judge refused to give probation, based on the amount of the stepson’s drugs.  Al was told he could not withdraw his plea, and the Judge sentenced him to 4 years in TDCJ.

The Judge angrily said that nobody gets probation for having that much cocaine in their house.  Hmmm, I sure hope the Judge doesn’t have a step son like Al had.

Meanwhile, the prosecutor, scalp in hand, dismissed the charges against Al’s stepson.  Wow.  All the police work, the search warrant, all of it, was based on a 19 year old delinquent selling drugs. Yet, all that really mattered in the end to the prosecutor (and the judge?)was that someone conveniently paid the price for the existence of drugs in Al’s house.

In the end, the 19 year old walked away without any penalty whatsoever.  The stepfather, a decorated U.S. Army veteran with no history of criminal behavior, ever, went up the river, and the defense lawyers moved on to the next case.

Al is understandably distrustful of lawyers, judges, and cops.  He served his country honorably, and Al always tried to be the best husband and father figure he could be.  Now, he simply tries to be the model inmate.

What a sad and unfortunate story!

The “Teen Brain” and Criminal Behavior

The May 10, 2004 issue of Time magazine featured a cover story entitled, “Secrets of the Teen Brain”.  The article reported that new research was leading experts to believe that teens have less control over their actions and are less capable of acting rationally than had previously been believed.  Anyone who pays attention to the world around them didn’t need scientists to reveal this fact. 

Science was starting to provide solid evidence to prove what we already pretty much knew from our own experience and observations.  This area of research is one that is of great interest to me as an attorney who represents inmates in Texas who are being considered for parole.  I plan to post a blog article in the weeks to come that will provide the latest research and data on the differences between the teen brain and the adult brain.  Here’s a summary of what I know so far, without the charts, graphs, statistics,etc.

Scientists feel that the human brain is not fully developed until age 25, rather than the prior belief that the brain was finished developing at age 12 or 13.

The area of the brain that is the last to develop is the prefrontal cortex.  This area is where a brain plans, sets priorities, suppresses impulses, and weighs the consequences of one’s actions.  This area of the brain is not completely developed until age 23-25.  

When the Time article was printed, 2004, I was interested in the subject of teen driving behaviors because of my work in connection with a case involving a teen driver who had run a red light going almost 40 miles over the posted speed limit.  The accident nearly killed my client. 

The teen tearfully told me in a deposition that he didn’t know why he had been such a reckless driver, he just liked the way it felt when he drove cars fast, really fast.  He seemed like a pretty good kid from a pretty good home, and he had genuine remorse and guilt for what had happened.  Of course, he is now a convicted felon for life.

During the past four years, I have had plenty of opportunities to see firsthand evidence that younger people really do commit more crime, especially crimes arising from impulsive behavior, and these people have much more disciplinary problems in prisons than older inmates.  Ask any prison warden what group of inmates causes the most trouble.  The answer is always the same, the younger ones.

It is ironic that more young people are being prosecuted as adults, and sentence lengths are often longer for teens (especially the poor ones) and very young adults, despite mounting evidence that the teen brain is not the same as the adult brain.

Hormones also play a strong role in teen behavior.  Sex hormones are most active in the limbic center, which controls emotions.  Teens have a tendency to engage in activities that cause their passions to run wild.  This tendency contributes to the adolescent tendency to thrill-seek.  Testosterone is the sex hormone in males.  Approximately 90% of the prisoners in TDCJ are male.  I’m sure that’s just a coincidence.

Hmmm, are you thinking that the combination of the undeveloped or underdeveloped prefrontal cortex and the presence of high levels of hormones might just combine to cause bad things to happen?  This is not being offered as an excuse for criminal behavior, but it might just explain an awful lot, if anyone cares to pay attention.

This topic needs to be better understood by judges, juries, prosecutors, defense attorneys, and parole officials.  I haven’t seen much evidence that these folks understand the science, and I have to wonder how much science has to be in front of them before it will cause a change in how the “system” treats criminal behavior committed by younger people. 

Will Parole Officials Dupe Parolees On Continued Use of Special Condition “X”?

On May 27, 2011, I posted a blog reporting that The Texas Court of Criminal Appeals had issued a very important decision in the world of Texas parole, involving the imposition of the controversial  ”Special Condition “X” in the lives of parolees.

The CCA held, unanimously, that the Parole Board is not permitted to impose sex offender restrictions on parolees who were never convicted of any sex crimes, without first having an evidentiary hearing and allowing the parolee to receive some level of due process protection.  The Federal Court had already told them the same thing, but that Order was conveniently ignored. 

There are literally thousands of people who are presently ordered to comply with Special Condition “X” who were never convicted of a sex crime.

It is my understanding that the Parole Board intends to have these thousands of people come in to meet with their Parole Officer who will then ask them to sign waivers so that the Parole Board can continue to impose Special Condition “X” . 

This move allows the Board of Pardons and Paroles to avoid the need (and the cost) to have thousands of evidentiary hearings in order to determine whether it’s even appropriate to impose the condition in each case where the parolee was never convicted of a sex crime.

I hope, though I seriously doubt, that the Board will choose to simply remove Special Condition “X” requirements in a significant percentage of the cases at issue.  Instead, I fear that most parolees will feel compelled to sign something they may not understand fully, especially because their parole officer is asking them to sign it.  Afterall, Rule #1 on parole is that you don’t piss off the parole officer or he can see to it that you are back in prison.

I also fear that parole officers will be expected (required?) to get the parolees to sign the documents, so that they can avoid having to worry about things like due process, fairness, etc.

This is going to be a mess, and I expect that there will be some litigation to follow.  I look forward to the possibility of participating in the fight to come.

Does The Victim Protest = Parole Denied?

As a threshold matter, I apologize for letting this blog post go pretty far north of 1000 words.  The blogging gods say blogs are best at 400-600 words.  I guess I’m way off the target blog length here.  Yet, there are those times when you share your thoughts on a particular issue and as they are written out in sentences and paragraphs, the words just seem to multiply.  This topic is one of those topics where it’s hard for me to remain loyal to the blogging gods.  I’ll pray for forgiveness later.

According to established TDCJ protocol, in Texas, a “victim” who wishes to protest the parole release of a TDCJ Offender is not only free to do so, but your tax dollars are also being spent to try to locate these victims and get them to lodge more protests. 

The expenditure of state funds in this manner undoubtedly leads to more victims protesting the release of more prisoners than if no public funds were spent trying to locate these people.  Shouldn’t we be allowed to see the effect of these protests on the parole decision, especially a protest procured in such a state funded manner?  If you are guessing that we do not get to see what the effect of victim protests is on the parole decision making process, you are correct.  

In my opinion, it’s fair to first ask why the state has taken it upon itself to spend the public’s scarce financial resources in order to  get more aggrieved persons more involved in the protest of the proper release of prisoners on parole.  Then, the second reasonable question I would ask is this, “How much weight do we (and should we) accord such protests?”

I placed quotations around the word victim, because the definition of “victim” for TDCJ is not what you might think.  ”Victim” according to the broadest possible definition imaginable (the one they use) may include an immediate family member of a crime victim, as well as ”other interested persons”. 

Huh?  I thought we Texans were supposed to be all about smaller government.  You know, rugged individualism, etc.  Yes, there really are state employees, with benefits, etc. whose job it is to scour the earth to try to locate all the true victims of past crimes, as well as any other folks who might actually give a damn if some guy gets released from prison.  No kidding. 

I’m just wondering why we can’t have a system where we allow the true victims of crime, if they choose to do so, to simply take it upon themselves to spend a few minutes on the internet or pick up the phone and figure out what, if anything, they can do to let their opinions be known to parole officials about how they feel regarding the release of a particular inmate?  And if they do take it upon themselves to let their opinion be known, isn’t also fair to allow the intelligent and highly educated Parole Board/Parole Commissioners who cast votes to still consider other views instead of being afraid to defy the wishes, no matter how unreasonable, of individual crime victims?

Besides the broad concept of “victim” protests, the District Attorney’s office that prosecuted the crime in the first place may also protest, and the DA’s are given notice and the opportunity to protest well before the inmate is even considered for parole.  More of your tax dollars at work.

A few DA’s, like the one from Williamson County, actively protest parole for many of the people they’ve previously convicted, in addition to their infamous habit of seeking, and obtaining, very long sentences for crimes that one wouldn’t expect would normally carry such harsh sentences.  When the legendarily “tough on crime” DA’s from Harris or Bexar counties look downright fair by comparison, something’s not right. 

I think the residents of Williamson County, and a few other places (Comal County, for example) ought to be charged higher state sales tax rates than other places, since they like to put their bad guys behind bars for such extremely long periods of time, then they go out of their way to see to it that these same bad guys stay behind bars longer than everyone else.  But that’s a topic for another blog post…

Incredibly, we have a system in Texas where prisoners are only interviewed by a voting Parole official in approximately 2% of the cases, and yet ALL “victims” get to speak to the lead voter, in every single instance where they want to do so.  No, really. 

The excuse given for not requiring the voters at the Board of Pardons and Paroles to actually sit down and talk to the prisoner, and then decide when he’s ready to go home, is a lack of money.  Or, maybe it’s claimed that such interviews would not provide any useful information, so why do it?  If such nonsense were to be officially asserted by anyone at TDCJ, I’d be surprised.

Millions are spent on “Victim Services” instead of on the additional salaries involved with having more Board Members and/or Commissioners.  We currently have 6 Board Members and 12 Commissioners who vote the majority of cases, and a Board Member in Austin who is the Head of the Board of Pardons and Paroles.  That’s not a lot of people, considering the enormous number of cases that these hard working folks review every day. 

We do more damage to the integrity of the system by allowing crime victims (and those who enjoy blaming all of life’s woes on a criminal event) to monopolize the limited time of the extremely busy (overworked?) Parole Board Members/Commissioners.  As incredible as all of this may seem, that’s exactly what we’ve got here in the Lone Star State.

I’m afraid that the above reality is not only the truth, but it gets worse. The substance of the “protests”, whether written, oral, or both, is kept completely secret from the entire world.  The danger, of course, is that a person protesting the release of a person they almost always despise may be able to provide biased, exaggerated, or even false information to the lead voter in any given prisoner’s parole review consideration.  Sadly, the inmate (or the inmate’s attorney) will never have any way to challenge the veracity of the representations that were made by the protester, and the voter is likely to take such dubious information as truth.

In theory, allowing the victim of a crime to participate in the parole process sounds reasonable.  However, crime victims are already encouraged to become quite involved in the prosecution of persons accused of criminal behavior at the courthouse, where the punishments are handed out.  Prosecutors customarily work closely with victims of crime, especially in case of violent crimes and crimes involving deviant sexual behavior. 

It is extremely common for a prosecutor to seek out the views of the crime victim and his/her loved ones and then honor the wishes of a victim (and/or the victim’s family) in negotiating plea agreements and in deciding which cases to take to trial.  It really does seem proper and totally appropriate to give real respect and meaning to the views of victims at the trial stage of the criminal justice process.  It is also some of the most noble and valuable work performed by prosecutors. 

By getting victims into the parole scene, the crime victims, and their family members, and other “interested persons” get a second bite at the apple.  Not only did they get to have a great deal of influence over the prosecution of those accused of the crimes, but their influence is multiplied if their protest is a key factor when the prisoner is to be considered for parole.

If this broad category of victims is automatically given the opportunity to have an audience with the lead voter at the Board Office that is responsible for determining if the Offender will be released on parole, it is fair to ask what the effect of all these protests is on the inmate’s opportunity to make parole.  Yet, the answer is kept as a closely guarded secret in the Board Offices.

I’ve pondered this cause and effect question for a long time.  Regrettably,  despite TDCJ’s official position that a victim protest is merely a “factor” among many, I have come to believe that the truth would likely shock the public.  I would estimate, and it is just my educated guess, that parole is denied in 90 to 99% of the cases where a “victim” protest is on file, regardless of the inmate’s rehabilitation, character, efforts at complying with the prison’s many rules and policies, family support network, job opportunities, etc. etc.  If I am correct, the effect of the protest undermines the integrity of the entire parole review process.

It’s obvious that I believe the manner in which victim protests are handled at the Board of Pardons and Paroles is severely flawed. Immediate reform is needed. Unfortunately, I have not seen any indication that the Board is going to undertake such reforms voluntarily.  If the victim protest really does equate to ”Parole Denied”, we’ve given the victim more power than the judge, the jury, and the entire TDCJ Board of Pardons and Paroles.