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.