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.

Follow Up To Smith County Insanity

A couple of weeks ago, I wrote a little piece about the extremely long sentences that I have seen come from Smith County (Tyler).  In that article, I wrote that I was soon going to interview a man who had received a life sentence for possession of a controlled substance.  Well, I conducted the interview at his prison unit last week, and now I can say with certainty that the insanity of the sentence is even more unimaginable than I had initially guessed.  So unimaginable, in fact, that I am sitting on a couch on Christmas day thinking about this guy over at the Coffield Unit who is looking at a lifetime of prison, and if he’s lucky, he can hope for a post prison lifetime being on parole.

This man, we’ll call him John, is a thirty something black man from Dallas who was driving down the highway through Smith County on his way to East Texas.  He was pulled over for supposedly not signalling his lane change.  When the officer took the driver’s license and proof of insurance from John, the officer went back to his patrol car and ran his criminal background, as they always do.  I’m sure the officer also noticed John’s gold teeth.

After the officer saw that John was on probation in Dallas for possession of a small quantity of ecstasy pills, and that John had previously been incarcerated for two separate counts of possession of a controlled substance, the officer decided to take a closer look.  He searched the vehicle, and no drugs were found.  However, in the cup holder, John had a convenience store soda cup with ice and soda inside.  The officer smelled the drink, and he asked John what was in it.  John replied that it was diet soda, which it was.  However, John had mixed some codeine based cough syrup into the diet soda.  The officer smelled the drink and knew the cup held more than diet soda.  So, he called for back up, and John was promptly arrested.

When John was at the police station, he admitted that the cup had codeine based cough syrup mixed with the diet soda, and that he did not have a prescription for the cough syrup.  John was, therefore, guilty of possession of a controlled substance, yet again.  Anyone who knows anything about probation, would know that John was going to get his probation in Dallas County revoked because of the new charge in Smith County.  That is, in fact, what happened.  John’s deferred adjudication probation was revoked and a Dallas Judge sentenced him to 14 years in TDCJ.  But alas, Smith County wasn’t through with John.

Smith County charged John as a habitual offender,  which resulted in them enhancing the severity of the crime and the possible punishment.  After being offered no less than 40 years from the prosecutor, John entered an open plea, which gave the Judge the right to pick the length of the sentence.  John got 99 years, (a life sentence under Texas law).  That codeine laced soft drink in John’s car is now costing the taxpayers of Texas $25,000 per year, for however long John remains a prisoner in TDCJ, and it will cost the taxpayers another $3,000 per year while John is on parole, assuming they ever let him out of prison.

I know John’s case probably seems like it must be a fluke, and that people with a drug problem and nothing more do not normally get a life sentence.  Maybe, but in my opinion, the “fluke” is not as uncommon as you might suspect.  I base my conclusion on the fact that there are over 156,000 people serving time in TDCJ, and I only get to meet a very very small percentage of them each year.  Therefore, if I’ve come across a few “John” situations each and every year, there are likely to be thousands more who do not have loved ones seeking the services of a qualified parole attorney.

I don’t know how many times it will take to convince the Texas Board of Pardons and Paroles to allow John to leave prison, but for John’s sake, I hope he doesn’t end up spending too many more Christmases behind bars.  Incidentally, John’s never been sent through any drug treatment program and he’s never committed a violent crime in his life.

Merry Christmas John.

Smith County…Again

I wrote a piece a while back about the outrageously high sentences that seem to regularly come out of Smith County (Tyler).  Today, I was confronted with yet another doozy from good ole Smith Co.

I am going to interview a man in about two weeks who is serving a life sentence for possession of a controlled substance.  Yep, you read that correctly.  Life!  Normally, as you might guess, possessing drugs does not get you a life sentence. It appears Smith County treats theses kind of situations quite a bit differently than the rest of the world.  Naturally, I am curious about how the man ended up with such a severe sentence, other than being prosecuted in Smith County, in a case where there is no weapon, no dead body, no rape, etc.

When I glanced at the file today and spoke to the inmate’s sister, I learned that he has had several drug possession cases over the years, and a drug habit that has plagued him for many years, but that he is also a very nice man, is not violent, and never has been violent.  He was raised in a very tough part of Dallas where many young men sold drugs for money, or used drugs, or both.  I will have the opportunity to more fully probe this man’s crimes and his life story during the upcoming interview, and I intend to look very carefully and somehow find a way to speed up his ability to go home.

One obvious point in this man’s story is that, regardless of the date he is released from TDCJ, he will ALWAYS be on parole, and therefore, he can be drug tested for the rest of his life.  Moreover, he is always going to be subject to parole revocation if he is arrested for a new crime, among other grounds for parole revocation.

As soon as I gather the information, I always have an ethical duty to tell the inmate what I think about the chances for making the next parole, and what I say is sometimes not what he/she wants to hear.  I hope I get the opportunity to help this man, because it appears nobody in Smith County was worried about his future or his drug problem.