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in our society, perhaps we can get down to the serious business of rehabilitation and self improvement, rather than the outdated, ineffectual model that is overwhelmingly focused on punishment only.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.