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.