Compassion; A Parole Lawyer’s Perspective

Recently, something quite extraordinary happened in my office that really affected me deeply, and prompted me to sit down and carefully examine the role compassion and empathy plays in our lives.  Because I regularly meet with people who are incarcerated in Texas prisons, I have previously read and thought quite a lot about these subjects. However, I’ve never written anything about compassion or empathy.  I hope this blog post presents a few insights into my perspective on the importance these character traits are for all of us.

Please allow me to briefly describe the incident in my office that served as the catalyst for me to write this post.  A few months back, I hired an interested and qualified candidate to fill an opening for a clerical position in my office.  Aside from the usual clerical duties of filing, faxing, emailing, etc., one specific duty this job entailed was to open up the mail each day, log it in to our firm’s software, and then read client letters addressed to me.  After reading the letters, she was to sort the letters into categories and help me draft responses to the routine letters, while leaving the more difficult ones for me to work on.

I knew there might be a problem when she told her co-workers that she didn’t want to deal with certain letters because she didn’t “like” the offender (based on the title of the crime that led to incarceration). After working for a couple of months, she came to me and announced that she was giving her two weeks notice, as she had taken a position in a medical office.  It didn’t bother me that she was leaving, but I was curious to understand what reasons were behind her decision.  I assumed it was something simple, like higher pay, or a work location closer to her home.  What she said shocked me, and I doubt I’ll forget it for a long time.

She told me she just did not like helping our clients.  I was puzzled at her reply because she is a friendly, pleasant, and professional person to be around, and I knew that she had previously confided in her colleagues that she was a devout Christian.  Instead of arguing with her when she told me that she was so against spending her working hours helping prisoners, I politely told her that I believed helping people was the very best part of the job, and sometimes people in prison might need help more than just about everyone else.

After she left my office, I became a bit sad, because I’m sure many, many people feel exactly the same way as my (now former) employee feels.  Admittedly, my employee’s claim of religious piety may have caused me to become more disappointed than I would have otherwise been, but even if she had been an atheist or an agnostic, I would still have wondered how she could be so blind.

The principle of compassion lies at the heart of every religious or moral tradition throughout the world, calling upon all humans to treat all others as we wish to be treated ourselves.  In order to understand what compassion really is, it is worth acknowledging what it is not.  Compassion is not pity.  In order to have compassion, you do not need to feel sorry for everybody else, though sometimes it is perfectly reasonable to feel some degree of sympathy at the hardships prisoners often endure.  Instead of pity, however, compassion involves feeling the suffering of others, or standing in their shoes in order to reflect upon their world. Compassion involves being human and recognizing that all of us have the potential to fail and make poor choices.  True compassion also requires us to ask ourselves what we all can do to help someone learn from their mistakes and become a better person.

They say that incarceration serves two broad purposes; punishment and rehabilitation.  A person who lacks compassion likely forgets that both of the purposes of incarceration are worthy of our respect and attention.  Unfortunately, it is obvious that our society seems to remain largely fixated on the punishment of crime, rather than on the rehabilitation of offenders.

Someone once said that you can tell an awful lot about a society by how it treats the least fortunate of its members.  Based on my observations, and the attitude of my recently departed former employee, we have a long, long way to go.

Thomas Jefferson Speaks To The Texas Board of Pardons and Paroles

I firmly believe that the people who make the parole decisions in Texas have one of the most challenging and important jobs in the world.  No kidding!  Not because they have to work any harder than anyone else who’s out there busting their butt at their job.  Make no mistake; they do work hard.  Very hard.  But the real reason I believe their jobs are so challenging and important is because of the enormity and finality of their decisions.

Besides one’s life itself, a person’s freedom is so important that it is one of the bedrock principles that this country, and many others, were founded upon.   “Life, Liberty, and the pursuit of Happiness” is a well-known phrase in the United States Declaration of Independence.[1] The phrase gives examples of the various “unalienable rights” which the Declaration says all human beings have been given by their Creator and for the protection of which they institute governments.

Thomas Jefferson, who happens to be my favorite of the founders of this great country, was the one responsible for writing the Declaration.   According to Wikipedia, the motivation for the famous phrase may be based on Jefferson’s personal philosophy, which he also believed ought to guide mankind in setting up a system of government:

“A number of possible sources or inspirations for Jefferson’s use of the phrase in the Declaration of Independence have been identified, although scholars debate the extent to which any one of them actually influenced Jefferson. Jefferson declared himself an Epicurean during his lifetime: this is a philosophical doctrine that teaches the pursuit of happiness and proposes autarchy, which translates as self-sufficiency or freedom.”

It’s that last word that really says it all.  Freedom.  Jefferson believed freedom was something all humans inherently deserve.  Therefore, freedom is implied in both the words “liberty” and the phrase “pursuit of happiness.”  Arguably, Jefferson has freedom right up there on the same level with life itself.

Jefferson, like most people, also felt freedom was something that could be taken away by the government in very specific, well defined situations, although I seriously doubt he would approve of some of the thousands of different scenarios under Texas law in which a person can end up losing their freedom in the giant, and often very arbitrary criminal justice system.  But, I digress…

Back to the Texas Board of Pardons and Paroles.  As I indicated, any person who is given the task of deciding who has to remain in prison and who gets most of their freedom back by being on parole, has both a huge responsibility on their shoulders, and a tremendous opportunity to help restore a meaningful life to thousands of people every year.  The reason I feel that the job is so incredibly important, and challenging, is because each voter at the Texas Board of Pardons and Paroles has far more opportunities to have an impact on people’s freedom than any 20 judges, any 100 prosecutors, or even any 1000 police officers.  If you think I’m insane for making this bold claim, consider the following:

According to the latest statistics published by the Board, in 2012 the Board considered over 80,000 people for parole, and they also considered over 20,000 people for mandatory supervision.  Therefore, a group of less than 20 people collectively hold the freedom of over 100,000 people squarely in the palms of their hands each and every year. Show me an equally small number of judges in any 20 District Courts in the State of Texas who can impact so many people and their families, and I’ll buy you a steak dinner at any restaurant you select.  I’m pretty positive my money’s safe on this particular offer.

So, how is any voter supposed to figure out what to do about deciding the freedom of so many people he/she has never even gets to meet?  The Official “Vision Statement” of the Board is as follows:

“THE TEXAS BOARD OF PARDONS AND PAROLES, guided by sound application of the discretionary authority vested by the Constitution of the State of Texas, shall:

Render just determination in regard to parole release and revocations, thereby     maximizing the restoration of human potential while restraining the growth of prison and jail populations;

Impose reasonable and prudent conditions of release consistent with the goal of structured reintegration of the offender into the community; and

Resolutely administer the clemency process with recommendation to the Governor fully commensurate with public safety and due consideration.

Clemency is a topic for another day and another blog post, but those other two things the Board “shall” do are incredibly important.  I have to wonder what Thomas Jefferson would say to the Board Members and Commissioners if he could have the opportunity to speak to them about what to do about these people, human beings, all of whom have made a few, or maybe quite a few, mistakes.  At the same time, nearly all of these people who end up incarcerated really do have a lot of good inside, and they would welcome the opportunity to get back to their own liberty and the pursuit of happiness.

I read a short but really interesting piece  by Eyler Robert Coates, Sr. while trying to figure out what Jefferson would say if he took a look at today’s criminal justice system, and here’s the link: http://eyler.freeservers.com/JeffPers/jefpco04.htm  Admittedly, Mr. Coates puts a little slant on the topic, but it’s still a thought-provoking and well done piece.

Perhaps the closest we can come to looking into the mind of Thomas Jefferson when it comes to crime and punishment is the following quote,

“In forming a scale of crimes and punishments, two considerations have principal weight. 1. The atrocity of the crime. 2. The peculiar circumstances of a country, which furnish greater temptations to commit it, or greater facilities for escaping detection. The punishment must be heavier to counterbalance this. Were the first the only consideration, all nations would form the same scale. But as the circumstances of a country have influence on the punishment, and no two countries exist precisely under the same circumstances, no two countries will form the same scale of crimes and punishments.” –Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:79

It appears, therefore, that even Jefferson expressly endorses a large  degree of subjectivity in the punishment of crime, with a particular focus on the degree of atrociousness involved with a particular criminal act.  As I have ask myself every single day when looking carefully at the cases of my clients, “Is it too much to ask that the punishment actually fit the crime?”  This is really where the Parole Board has the greatest opportunity to do good, because these dedicated public servants have the chance, indeed the power, to have the last word on punishment.  They have the power to make the real consequences of a particular crime a lot more sane than what goes on at the courthouses across the state.  And with such awesome power comes an awesome amount of responsibility.

Get Their Offers IN WRITING!

The other day, I was speaking with a Parole Board Member about my client’s case, and I remarked that my client had turned down a plea deal for 9 years, and then she lost at her trial.  Unfortunately, she was sentenced to 35 years in TDCJ by a jury that rejected her claim of innocence.

The Board Member said it did not surprise him that such a plea offer could have occurred given the facts of the case, but he said he really wished he had such offers in writing as part of the parole file. Although it would seem logical and fair, I seriously doubt whether any prosecutors ever put plea offers in writing.  Accordingly, my response was that I had never seen a plea offer in writing.  After we concluded our discussion, I started thinking about what we had just discussed, and I couldn’t help but wonder what one could do during plea negotiations to more accurately memorialize the facts for possible later use in a parole review context.

During typical plea negotiations, most criminal defense attorneys get offers along the way from prosecutors, and then all such offers are promptly conveyed to their clients.  The attorney is then usually called upon to give the client his/her opinion as to the reasonableness of the offer and whether any further offers are expected, among other things.

At some point, the prosecutors’ “best offer” is on the table, often as trial approaches, and  the client is faced with a very limited period of time in which the offer must be accepted or rejected.  Attorneys and their clients are forced to go to trial in all cases where the client rejects a last best offer and prefers instead to risk a worse result.  It is generally the case that the prosecutor will ask a judge or jury to sentence the accused to a much longer period of time than the best offer prior to trial.  Hence, what the prosecutor believed was a “fair” punishment may depend largely upon whether the defendant forces the prosecutor to work.  Hmmmm.  Also, as a matter of principle, if the word got out that prosecutors would offer defendants nothing worse than what they were going to ask a judge or jury nto sentence a defendant, there would be very very little incentive for a defendant to ever accept a plea offer.

Irrespective of the reason for the large discrepency between a last best offer and an actual prison sentence, it is absolutely 100% relevant in the parole context of such cases whether a defendant turned down an offer that was considerably lower than the actual sentence.  I believe I have a way to make sure a defendant is protected at the parole review stage when this situation arises, particularly where the lawyer believes it’s in the client’s best interest to accept the offer.

The defense attorney ought to simply take out a sheet of his law firm’s letterhead paper and clearly spell out, in writing what the last best offer in the case is, that the client has been advised as to professional opinions of the attorney about the propiety of accepting the offer, and of course the potential risks of rejecting the offer.  Then, the client and the attorney would simply sign and date the written notice.  This document should preferably be kept in a safe place, because it may very well be the case that the Texas Board Of Pardons and Paroles will have mercy on anyone who has already served a term of confinement that exceeds a plea offer made in the case, provided a signed document like the one described above is part of the documentary evidence in the parole file.

No matter how insignificant it may seem to make a defense attorney create a document that memorializes the rejection of a last best offer, it may be that such attention to detail could pay enormous dividends at a later date.

25 Years For A Text Message? Only in Texas.

Way back when I went off to law school, the first semester of the first year included the core course in Criminal Law.  It was one of my favorite classes ever.  One of the fundamental principles we learned in the study of criminal law is that, in order to hold a person criminally responsible, under the common law, we needed to have both mens rea, and actus reus.

Mens Rea is Latin for “guilty mind”.  Actus Reus  is Latin for “guilty act”.   Therefore,mens rea refers to the mental element of the offense that accompanies the actus reus, or physical action taken in carrying out the crime.

Perhaps the easiest way to understand why it’s probably a really good idea to include both the mental and physical components in order to charge someone with a crime, then prosecute him, then convict him, and then send him off to prison, is that every one of us would probably have to go to prison at one point in our lives if we could get in trouble for thinking bad thoughts.

In our modern age of technology where we can communicate via text message, email, Facebook messages, etc., our ability to share what’s on our minds has never been easier.  Therefore, in a very real sense, police and prosecutors can now easily identify and prove many many more instances of a “guilty mind” than ever before.  Thank God we still have that thing called actus reus, right?  Well, not so fast.  Maybe we don’t have it as much as we think we do.

In perhaps the most blatant display of prosecutorial abuse, ignorance, and unfounded community hysteria I think I’ve ever seen, about 5 years ago, a small town in the Texas Hill Country sent a 17 year old boy off to prison with a sentence of 25 years for sending a private text message to his 16 year old friend.  The text message itself was nothing more than an attention-seeking message by one immature teen to another, in which the sender, diagnosed with bi-polar disorder, and not taking his medications as prescribed, expressed his woes and his feelings about himself and the high school he had formerly attended.  Specifically, he said, to his friend, via text, “I feel like blowing my head off and going and shooting up _________ High School”.

Unbenownst to the distraught sender of the text, the text was forwarded to at least two other kids, and one of them sent the original sender a text, which said, “I’m down for Columbine.”  When the text using the dreaded word “Columbine” was seen by that kid’s mom, everybody freaked.  The cops, the small town news media, the prosecutor, and sadly, the Judge who was given the freedom to sentence the boy to anything between probation and 25 years.  Judges are elected, and this particular town had stopped looking at the evidence the moment the word “Columbine” was in their newspaper and on their televisions.

Although at the time, nobody seemed to care, it probably is worth noting that the kid in question didn’t own a gun, a bomb, or even a knife, and he had never acted violently towards anyone.  There was never any evidence found that he had any access to any means to obtain a gun and shoot up a high school.  Heck, there was NO evidence found that he planned to do anything.  In other words, other than the words of the text itself and the physical action of sending a text, we have no actus reus.

Unfortunately, this blog post is not some interesting theoretical exercise that law students discuss in the comfort of their first year Criminal Law class.  It is, unfortunately, a real case I am handling, and it is unbelievable to me that this kind of small town lynch mob mentality can still happen right here in the USA.  There are many places in the world where people are punished for their beliefs, their thoughts, and their words, and we are quite fortunate to live in a country where we have due process under the law, and all enjoy basic civil liberties.  In places like China, Iran, North Korea, and Syria, it would not surprise me at all to learn that a person would be imprisoned for having thoughts or opinions, or expressing them, when such thoughts and words are deemed to be a threat to civil order.

In Texas, and anywhere else where the United States Constitution still means something, the life of one young man, with hopes and dreams just like everyone else, ought to be far too precious to be thrown away just because he sent a text to his friend in a moment of sadness and despair.

 Now, five years after the ill-advised text sent by a 17 year old, I have the privilege to try my best to convince the Texas Board of Pardons and Paroles that being in prison for five years for sending a text, and then having to be on parole for the next twenty years, is more than enough punishment.

What Can You Do About a Protest of Your Loved One’s Parole?

In Texas, in order for a prisoner to leave prison early, the parole eligible offender must be given a positive parole vote by the Texas Board of Pardons and Paroles.  I spend a lot of my professional time trying to somehow get inside the minds of the 18 people who regularly vote cases at the Parole Board in order to try to know for sure what information I can provide that will make a difference and result in a positive vote for my clients.

The issue of victim protests is something many people tend to overlook.  However, it is a critically important issue, and it is my opinion that victim protests play an enormous role in the decision making process at the Texas Board of of Pardons and Paroles.  In fact, I believe, though I cannot prove, that a protest is nearly always fatal to the offender’s chances of going home on parole, regardless of just about ANY other fact.  The purpose of this blog post is to discuss this issue and provide a common sense way of dealing with the situation of a victim protest.

As a preliminary matter, it is important to understand that TDCJ devotes a considerable amount of time and energy to get in contact with victims of crime in order to inform the victim that the person who committed the crime is going to be considered for parole in the near future, and TDCJ’s Victim Services Division also informs the victim that they have the right to file a protest.  The regular practice at the Parole Board is to afford the victim the right to speak to the lead voter in the case in order to provide any input or information the victim wishes to provide.  Therefore, in addition to prosecuting attorneys making considerable efforts to include victims’ wishes in the prosecution of crime, parole officials also spend time and money encouraging victim participation in the parole review process.

Not all victims are located or contacted, but many are.  When a victim is located, the victim may simply choose to ignore the parole situation altogether, or may choose to get involved.

The Texas Board of Pardons and Paroles does not disclose any information about victim protests, and will not ever disclose whether a protest even exists in any given case.  They strictly follow this policy.  There is a valid reason for not disclosing this information.  Namely, the Board does not want the incarcerated person or his/her family to retaliate or threaten revenge against anyone for filing a parole protest.

Although the policy reason for keeping the protest information private is certainly valid, there are some real problems in allowing victims to get involved in the parole review process.  I will briefly discuss these problems in this blog post.

In my opinion, the biggest problem with allowing protests into the parole review process is that, in nearly every case where there is a victim, the victim has already had a very substantial say in how the prosecuting attorney handles the prosecution of the accused. Moreover, once there is either a plea agreement or a guilty finding by a judge or jury, the victim(s) are afforded the opportunity to testify and such participation in the process will almost always be designed to influence the judge or jury to assess a longer term of incarceration.  And let’s not forget that Judges are elected to the bench in Texas.  In other words, the victim of crime is ordinarily a major player in the punishment of crime at the courthouse.  Therefore, once the punishment occurs, it seems unfair to allow the victim to further influence the offender’s opportunity to be treated fairly by the Parole Board, just like every other inmate who is under consideration.  It just seems like the victim is given two bites at the proverbial apple, and the accused is punished twice.

The second biggest problem I have with allowing victim involvement in the parole process is that the convicted criminal has absolutely no way to rebut or refute ANY of the assertions of fact that are made by the victim of the crime.  This is because, in addition to not even knowing whether there IS a protest, neither the criminal nor his attorney is ever given the details of the victim’s protest.

For example, let’s say a purse snatcher with a drug addiction tries to steal a purse in order to get some money for his next fix, and the woman holding the purse holds on to her purse for dear life and falls to the ground in the brief struggle.  Then, let’s say the criminal is apprehended and prosecuted.  These are the exact facts of a case I worked on a couple of years back.  Now, let’s suppose the victim gets involved, really involved, and does everything she can to see to it the accused is punished severely.  She even starts blaming all of her many problems in life, and inventing ones that are not even real, on the man who stole her purse and knocked her to the ground.

As odd as it may sound, this kind of thinking is actually not that all that extraordinary.  Some people love to blame their problems on outside forces or people so as not to face reality. Reality requires one to own up to their own mistakes and failures.  That takes courage and a sincere desire to become a better person.  Anyway, the point here is that the aggrieved victim has the potential to poison the well at the Parole Board without ever having any of his/her assertions of fact challenged or properly vetted.

As if the above reasons are not enough, there is a third problem with the victim protests at the Texas Board of Pardons and Paroles.  The protest almost always results in a denial of parole.  Now, this is just my opinion, but I’m almost positive about this assertion after serving as a parole attorney and representing over 500 people in their parole review process.

Why does the protest pretty much guarantee a denial? (in my opinion).  It’s simple when you stop and think about it.  The Board of Pardons and Paroles is part of a state government.  Thus, it’s a political entity.  In fact, the people who sit on the Board are appointed by the Governor.  It really doesn’t get much more political than that.  Moreover, people who work in the state government do not want state senators or people from the Governer’s office calling over and asking why some really pissed off constituent (voter) is mad as hell and demands that the government do something about the terrible thing that happened over at the Parole Board.  Can you really blame these folks when they choose to take the safe route and cover their behinds rather than risk the fallout of a gutsy call?

As I have said, I am not positive that a protest means it’s game over for the inmate aspiring to go home and live a crime-free, upstanding life, but given the above, I’m pretty darn sure I’m right on this issue.

So, if two people commit the same crime, and one ends up unwittingly having a victim, especially an angry one, and the other does not, it seems crazy that one will almost certainly not make parole, and the other likely will make parole, all other things being equal.

I guess the lesson here is this, if you really must commit a crime, try like heck not to have a victim.  And if you do end up with a victim, you had better hope the victim knows (and practices) the virtue of forgiveness.  Otherwise, you had better plan on spending a huge percentage, or maybe all of your sentence,  behind bars

Instead of dwelling on things we cannot control, as depressing as this whole protest thing may seem to the unlucky offenders with angry victims, here’s a few things that can be done to potentially mitigate a parole protest.

1.   The accused ought to do everything possible during the plea negotiation and sentencing to show genuine remorse, and take whatever steps possible to help the victim deal with the effects of the crime.  The apologies must be sincere, and the defense attorney should not be afraid to allow such efforts at reaching out and showing a little humility and class in an otherwise unfortunate situation.

2.   If the Court ordered the accused to pay restitution to the victim, a good faith effort at paying the restitution is a very good idea.  Money might help to soothe the pain  felt by some victims in certain cases.

3.  The family of the accused should not resist the urge to tell the victim and/or their family how sorry they are.  It’s not a sign of betrayal to a loved one to tell another human being that you care and that you are sorry about what happened to them.  Sometimes such an apology will mean even more to a person than money.

4.   Although many people do not forgive others, some do.  However, it may take time.  So, if a victim is hurting and angry, it’s possible that time will allow for a more calm reaction in the future.  The prisoner shouldn't expect instant forgiveness.  Nonetheless, the sincerity of the apologies and genuine remorse may very well be to be soothing to a victim, eventually.

I hope we can someday see some objective and beneficial changes regarding victim protests. It is a very difficult situation that is not really going to improve without some major initiative on the part of some very brave politicians or state officials.