The old joke amongst people who have a superficial understanding of the prison system is that everybody in prison is innocent. It’s a joke that has been around for as long as there have been prisons and prisoners. However, after interviewing well over 500 prisoners throught the Texas prison system, all of whom are convicted of one or more felonies, the old joke referenced above really ought to be permanently retired.
Most guys (and ladies) who are incarcerated will readily admit that they broke the law and are, in fact, guilty. Sometimes, the illegal act is a different crime than what a prisoner is officially incarcerated for, but this seemingly strange result is usually the result of one or more of a few different reasons.
One common reason for the real crime being different than the offense of conviction is that the defendant entered a plea agreement to a lesser included offense. That’s a legal term of art that simply means a less serious offense in the same family as the one charged.
Another reason for the title of the crime being different than what actually happened is plain and simple, prosecutorial abuse. Yeah, it’s pretty common, and there never seem to be any consequences for it, which only makes the problem worse.
Yet another fairly common reason reality differs from the offense of conviction is the infamous “law of parties”. That’s another legal term of art that basically means you might get charged with a crime if you are with someone else who breaks the law, even if you didn’t break the law, and sometimes even when you had no idea the other person was breaking the law. Sounds kind of crazy, but it is the law, and the only thing preventing it from being abused is the prosecutor’s office. Unfortunately, the law of parties is combined with the over-zealous prosecutor and the ineffective court appointed attorney to create the perfect storm.
So, for the guilty ones, which really is most convicted felons, the offense of conviction is quite often not the accurate title for what really happened. But when the over-worked, under-funded Board of Pardons and Paroles is supposed to do its job, these inaccurate labels can and do wreak havoc on one’s parole opportunities.
But what about the prisoner who really is innocent of any criminal wrongdoing, including the crime for which he is incarcerated? If you are one of the many people who scoff and say that innocent people do not go to prison, I respectfully suggest you are wrong. Dead wrong. I see it all the time in my professional practice.
There is one really big reason I have seen to explain why many innocent people are in prison. The technical term is called “sentencing differentials”. Here’s how it works, in laymen’s terms…
All first degree felonies in Texas carry a punishment range of 5 to 99 years. That’s a huge range, right? And, it’s a huge problem. Whenever a person is accused of a first degree felony, the proscutor is the only person on the planet who can make an offer to an accused person to plead guilty in exchange for a finite term of incarceration. Prosecutors dispose of over 97% of the cases with plea agreements as opposed to trials, for a whole bunch of reasons that are beyond the scope of this blog post. But, the prosecutor is almost never inclined to want to dismiss a charge, even in cases where there is a real question about the defendant’s guilt. It is here that sentencing differentials become a very powerful weapon in the prosecutor’s arsenal.
If the person is guilty, and the evidence tending to prove said guilt is strong, as long as the “best” offer from the prosecutor seems likely to be no worse than what a judge or jury would choose, a plea deal will almost certainly take place. But, if the person is innocent of the crime, he faces an interesting dilemma: take his case to trial and try to prove his innocence in a courtroom, or accept a plea deal where he must admit guilt for something he didn’t do and then accept an agreed upon term of imprisonment.
If the best offer from the prosecutor is significantly lower than the length of sentence the prosecutor will ask the judge or jury to impose after a defendant loses at trial, there is asentencing differential. The bigger the differential, the more incentive there is to accept the plea agreement.
Let’s look at an example of a real world sentencing differential that is very similar to some I have seen…
A man in a troubled relationship and who has a bit of a checkered past is accused by his ex spouse or girlfriend of assaulting her, and using a knife in said assault. Maybe he assaulted her, maybe he didn’t. Maybe he had a knife in his hand, maybe he didn’t. Maybe both the accused and the accuser were drunk, or high, or both, maybe they weren’t. No stabbing occurred, so we can’t tell by looking at records from a hospital’s emergency room. Nobody went to the hospital, and nobody got hurt. No witnesses see or hear the alleged confrontation. Tough situation, right? But, it rarely prevents the police and prosecutors from pursuing criminal convictions.
After the police do their thing (arrest the guy and lock him in the county jail), the prosecutor’s office must then decide whether to charge the defendant with a crime.
Hint: they almost always do, no matter how questionable the accuser’s allegations may be.
Once the prosecutor charges the defendant, the penal laws in Texas and most other places take the allegation of a deadly weapon very seriously. In Texas, Aggravated Assault With a Deadly Weapon is a first degree felony that carries a very serious penalty (5-99 years), and it is an offense where the law mandates the convicted offender spend at least 50% of the sentence in prison before even being eligible for parole consideration.
Let’s say this man has a previous record for assaulting a wife or girlfriend, and has had some drug or alcohol related convictions in the past, and all of these past brushes with the law are well known to the accuser, regardless of whether she was the victim in the prior assault case. The prosecutors will see this past record also, and will almost never believe such a person’s claims of innocence.
In other words, the accuser knows her man, who she’s very angry with, is in deep doo doo if she swears he assaulted her, and the doo doo gets even deeper if the accusation involves a weapon. Meanwhile, the prosecutors are licking their chops.
In our little example, the prosecutor might seek a 30 year sentence, even if there isn’t a dead body or any injuries whatsoever. No kidding. The prosecutor simply tells the defendant’s attorney he will ask a judge or jury for 30 or more years, but only if the defendant takes his case to trial. The prosecutor recognizes that the case will come down to who the jury will believe, the defendant (with a checkered past), or his now former wife or girlfriend. The “victim”.
So, the prosecutor offers the defendant 10 years in prison in exchange for a guilty plea.
Now, the defendant, who may very well be innocent factually, has a choice to make. If he loses his trial, the result will be a very long prison sentence, and in many respects, his life is destroyed completely. If he takes the plea agreement and states in open court that he is guilty, he will be incarcerated for at least 5, but no more than 10 years. Under this plea deal, his life is not completely destroyed by going to prison, because he will still be eligibleto be released in less years than many people take to finish a college degree, and will be home for sure before he’s an old man.
Am I saying the majority of people sitting in prison are innocent? No, of course not. What I am saying is that a significant percentage of the people I have interviewed at length are, in my opinion, innocent of the criminal charge they are incarcerated for, and a significant minority of those are not guilty of any criminal wrongdoing.
You might wonder how on earth it could be possible for large numbers of innocent people to be incarcerated. I used to ask this question too and doubted it was even possible. I now know it is possible, and I believe it’s true. I mistakenly concluded that prosecutors were taking the time to dismiss all the cases where the guilt of the defendant was in doubt. I was wrong. If anything, it’s the other way around. They will seek the prosecution in almost any case where they have any chance of getting a conviction, especially those where the defendant has any prior criminal history. Therefore, they will seek the prosecution in any case where there is a swearing match between a defendant and another person.
One of the most important things that happens when I interview my clients at the prisons is an admonishment I give every single one of them pretty early in the discussion. It goes something like this, “I am here to see if I can help you make parole. I can’t help you very well if you lie to me. DO NOT lie to me, about ANYTHING”.
You see, as a parole lawyer, my role is different than that of the criminal defense attorney. The criminal defense attorney compares what is alleged to have happened to what the state is likely to be able to prove in court, and rarely cares to hear whether his client did or did not commit the crime. For me, one of the most important places to start is what happened that led to the person getting put in prison. It is here that I learn of the innocent people who signed plea agreements and had to say they were guilty.
The sentencing differential is the biggest and most frequest reason I’ve seen as to why a person would plead guilty for something he didn’t do.
When I get a client who is innocent, and the facts suggest he faced a large sentencing differential, we are faced with the question of whether to assert to the parole board that he is innocent, or to simply accept responsibility for a crime he did not commit, just like he did when he accepted the prosecutor’s plea deal under a sentencing diferential scenario.
I have successfully assisted innocent people with securing a favorable parole vote where the innocent person did not have to say he was guilty in order to make parole. These are some of the most interesting and challenging cases I have handled.
