I LOVE "Grits For Breakfast"

I love to read.  I like to write.  Although I happily compose written work every single day on behalf of clients and their families, writing is much more difficult and tedious than reading, which is why I am in such awe of the blog "Grits For Breakfast".  Nearly every single day for the past 10 years, this blog with the unusual name has put out interesting and thought-provoking blog posts.  Each and every post generally contains at least a link or two to other primary or related sources.  I learned about it 5 or 6 years ago, and I have been reading it somewhat religiously ever since. It's my favorite blog, bar none! I'm not ashamed to admit that my own blog is high school junior varsity basketball, and "Grits" is the NBA.  

Grits is the work of one man, from what I can tell.  One very, very talented, intelligent, and dedicated man, Scott Henson.  I have never met Mr. Henson, and I wouldn't know who he was if he was standing right in front of me, although I would love to meet him someday and tell him how indebted I am to him for giving me a free daily dose of Texas criminal justice news and information for years now.  Here's what Mr. Henson says about his own blog:

Grits for Breakfast remains an uncompensated hobby: All opinions are my own unless otherwise specified. I also maintain a seldom-updated personal blog called Huevos Rancheros. I've maintained Grits independently from any group or party because I want it to be place to discuss ideas in all their nuance, not just a spokesblog for this or that organization. The problems facing the criminal justice system are enormous, and we need unfettered, creative thinking to identify solutions that can work for everybody and keep us safe and free. It's my sincere hope that Grits contributes to that process in some small way.

I do not read every single post put out by Grits, and some days I have to go back and look at the posts of the past week because I have been so busy.  However, I find myself reading a pretty high percentage of the posts, and I feel a great deal of gratitude to Grits and Mr. Henson on a regular basis.

I encourage anyone who is passionate about improving our state's criminal justice system to read Grits religiously, and, if you are in a position to do so, consider donating to this wonderful and free resource provided by Mr. Henson.

Restorative Justice: We Must Improve The Way We Deal With Crime

My practice necessitates spending a considerable amount of time thinking about incarceration.  I think about what it accomplishes and what it does not.  I've interviewed well over 800 prisoners convicted of one or more felonies.  Sometimes, the sentences are short, a few years or so.  Other times, the sentences are 20, 30, 40, or more years.  Most of the time, I am left feeling that incarceration, particularly after the first couple of years, accomplishes almost nothing, and at enormous taxpayer expense.  I have been studying a movement called "Restorative Justice".  In my opinion, it represents one of the most powerful and logical methods of promoting healing for the wrongdoer and the victim, and it has tremendous potential to enhance the important goals of rehabilitation and decreased recidivism.

Restorative Justice is almost a completely foreign concept to most prosecutors, police, judges, and prison officials.  Outside of academia, practically nobody in the United States knows or cares what restorative justice is.  And that is a shame.  Perhaps the most important group of people who need to understand and entertain the possibilities contained in this social movement are the politicians.  After all, they make the laws, and therefore, they are the ones who could most easily bring the benefits of restorative justice into the ineffective and over-priced justice system we currently have here in Texas and in the U.S.   

Ok, so what am I talking about anyway?  What is "restorative justice"?

Restorative Justice is an effort to transform the way we think of punishment for wrongful acts. This can apply to all wrongful acts, not just criminal acts.  

When a crime or other bad act occurs, it effects victims, offenders, and interested bystanders, such as family members, employers, employees, friends, etc.  It also has an effect on the community at large, and tends to have a de-stabilizing effect.  These bad acts can be seen as cracks in the foundation of our community, and they create needs and responsibilities for the direct participants of the act, as well as for the larger society in which the act occurred.  

Restorative justice is the name given to a variety of different practices, including apologies, restitution, acknowledgement of harm, as well as other efforts to promote and provide healing for all, and reintegration of offenders into their communities, with or without additional punishment.

Although restorative justice usually involves a trained facilitator who oversees direct communication between victims and offenders, there is also usually partial or full representation of the community interest at large.  It is a formal setting in which informal, but critically important, communication is fostered.  The basic goal is the complete and sincere acknowledgement of fault by the offender, and restitution of some sort to the victim. The broader goal is the approval of the community that the resolution is also in the best interest of society as a whole.  The restitution to the victim usually includes the expression of genuine remorse and sincere apologies, which can be written, oral, or both. There is often a new understanding gained by both victims and offenders during this process, and there are often agreements made about future behaviors, including financial restitution, where ever possible and appropriate.  

The ideal of restorative justice involves achievement of the four "R's"  

Repair     Restore     Reconcile      Reintegrate

Although we can trace the roots of restorative justice at least as far back as classic Greek, Arab, and Roman society, modern restorative justice came about as a response to failed criminal law models of retribution and rehabilitation.  In other words, a strictly punishment-based model for dealing with crime had proven completely ineffective at deterring future crime, and rehabilitation programs were only successful at times, but were wholly unsuccessful in all cases where the offender did not undergo the inner transformation needed to prevent future criminal behavior.  

Any system we choose to employ must have, as its foundation, the goal of reducing or eliminating future criminal behavior, from the least serious to the most serious offenses.  Such a goal, if realized, creates a safer, more peaceful, less violent, and more harmonious society.

The history of criminal justice and punishment is one where the state has continuously gained more and more control over its citizens in the name of "safety".  The costs to taxpayers have become so extreme that people are finally starting to ask the important questions about whether the money is really being spent the right way.

Restorative justice could even be effective as a hybrid to incarceration.  For example, if a crime is a 1st degree felony under Texas law, it calls for a punishment range of 5 to 99 years.  After the prosecution and defense attorney have their opportunity to consider the facts and legal issues, it might be very wise to place the offender in prison for 2 to 5 years, depending on the crime, and then ask that the restorative justice process be given the opportunity to take place.  After 2 to 5 years, a lot can happen.  People can grow up, wise up, admit to substance abuse issues, acknowledge right from wrong, humble themselves, and in many cases, they may have deep empathy and compassion for those that they have wronged.  Meanwhile, the victim may have finally developed the courage to forgive, acknowledge their own wrongful role, if any, in a given scenario, develop the will to heal and let go of past pain, and finally, move forward and live the best life possible. 

One way to look at restorative justice is the visual below...

  




Justice, in its noblest form, must promote healing and reduce human suffering.  Thus, the question above is not just appropriate, but it is also essential.  The interests of the victim and the offender are placed on the right and left, and the interest of the community is placed on the top.  Yet, it is only where those interests can, through reason and informed discussion, overlap that we will ever find justice. Failing to find that overlap and work within it almost invariably creates an adversarial perspective, leaving at least some, or possibly all of the interested parties permanently feeling marginalized or ignored, and feeling as if the badly needed healing will never come.

Parole Protests Are Hurting The Legitimacy of The Entire Parole System

I have been representing prisoners before the Texas Board of Pardons and Paroles since 2007.  One complaint I have heard many, many times from inmates and their families is that some of the very best behaved “model” inmates are repeatedly denied parole, while some of the “knuckleheads” seem to get paroled very quickly.  I have also witnessed this phenomenon myself on many occasions.

Obviously, this type of complaint by inmates and their families about perceived unfairness in the parole process is a generalization, and it often completely fails to account for the true nature of the crime, the inmate’s own past failures above and beyond the major failure for which he/she is incarcerated, among other things. These complaints also fail to account for the list of static and dynamic variables that go into a parole guideline score.

This concern of perceived unfairness, however, becomes much more valid when you compare inmates who committed similar crimes and who have similar guideline scores, and who both demonstrate a great deal of positive transformation as a result of the valuable lessons learned in the years following the criminal behavior.  In these “apples to apples” scenarios, it is completely arbitrary that one person makes parole, and the other does not, especially if the person denied is repeatedly denied.  And the greater the difference in the length of the term of incarceration ultimately required of two such similarly situated inmates, the more arbitrary and unreliable the parole system as a whole becomes. Victim protests are, in my opinion, a huge part of the reason for such arbitrary and unbalanced results.  It is my opinion that the extreme reverence presently given to parole protests undermines the legitimacy of the entire parole system.

I have blogged before that a victim protest likely equates to a denial of one’s parole, period, with little or no exception, period.  I must qualify my firmly held belief by openly admitting that I cannot prove that this is what is happening, and there is a very good reason I cannot. Namely, the Texas Board of Pardons and Paroles strictly adheres to its policy of never revealing the existence (or non existence) of a protest on any particular file, in any given offender’s parole review.

Before anybody starts thinking that I have no sympathy for crime victims, let me first say that I am a compassionate person by nature, and I am always looking for ways to bring peace and serenity into my life and the lives of those with whom I come into contact in my daily life.  I do not like conflict or unkind behavior, and I loathe unnecessary human suffering.  Therefore, I am naturally sympathetic and I have genuine empathy towards anyone who suffers.  Some victims of crime are forced to endure unspeakable suffering because of the extreme and completely outrageous nature of the criminal behavior inflicted upon the victim and his/her family.

When a crime occurs in which innocent people are victimized unnecessarily, we all lose. But, generally speaking,  nobody loses more than the victim and the victim’s family.  Just because I see suffering of inmates and their families on a regular basis, it does not mean I am oblivious to the victim’s suffering.  The most obvious example of such suffering occurs when a person is murdered.  Yet, there are many, many other crimes that are less extreme that, nonetheless, cause a large amount of temporary or permanent suffering.

When you really stop and think about it though, a parole vote should have little or nothing to do with whether a victim is protesting a prisoner’s release from prison.  The decision whether to parole a person is supposed to be objective, made by a qualified group of people who can objectively consider the relevant information.  Objectivity.  That’s what we, as a society expect from any governmental decision-making body.  In fact, jurors in every civil and criminal trial in the state of Texas are expressly instructed by the judge not to let bias, sympathy, or prejudice play any part in their deliberations in important matters such as guilt or innocence in a criminal case, or in determining the amount of damages to award a party that seeks money damages in a civil trial.  Yet, this objectivity is openly challenged at the courthouse by involving crime victims, which is quite common in this age of increasingly popular “victim’s rights” programs.  To allow victims of crime even more power by affording them future opportunities to negate the objectivity of the parole system makes the opinions and experience of parole officials seem completely irrelevant.

A protest by a person who still carries the anger and pain of a past crime is perhaps about the most subjective opinion one could possibly seek out concerning whether a particular inmate has a) been adequately punished for a given criminal act, and b) whether an inmate has been rehabilitated and demonstrates the requisite maturity and character to be trusted to re-enter society and live a crime free life.  In fact, most crime victims could care less about anything other than their own pain and their own desire to see the perceived wrongdoer punished. It stands to reason, therefore, that a crime victim is the least qualified person to be able to address whether an offender has been properly punished, and whether that same inmate has been rehabilitated.

If the entire justice system is premised on the notion that decisions must be made as objectively as possible, the first question we should all ask ourselves is whether the stated desire of a victim ought to play any role in the justice system.  Even if the answer to that question is “yes”, that we do, in fact, want to introduce the subjective will of crime victims into our society’s justice system, the second question that naturally follows is whether we want to place some reasonable limits on the will and of the victim.  If there is to be a limit on the will of the victim, at what point must we stop looking to the victim for guidance as to what to do with a person who committed a crime in the past?

The above question is extremely important.  Another way to state the question is this:

When do we move beyond subjectivity (sadness, anger, hatred, desire for revenge) and seek to remain objective about the dual purposes (punishment and rehabilitation) in every criminal justice system?

There are really only three possible answers to this question.

The first possible answer is that we should  seek a system where the law punishes criminal behavior itself, without regard to anyone’s personal opinions, least of all the victim, who is almost certainly biased, and understandably so.

The next possible answer is that we allow the subjective will of a crime victim to play a limited role, but we set up a system where that subjective role, while allowed, is still subservient to the more objective will of those whose job it is to be as fair and objective as possible.

The third possible answer is to the important question above is to set up a system where the objective decision making ability of judges, juries, and parole officials is pretty much disregarded, and the subjective will of crime victims is the basis for all important decisions. I’m afraid that the present way of handling crime and punishment in Texas is leaning more and more towards this third scenario.

Most crimes result in victims.  This inappropriate victimization is precisely why many criminal statutes are enacted in the first place. So, when a person is arrested and is suspected of having committed a crime, victim centered system dictates that we ought to go ask the crime victim what punishment, if any, ought to be imposed upon the person being charged with crime, without regard to anything else, and then keep asking the crime victim how he she feels into the future.

When an offender sits in prison, he or she is being punished.  However, while the punishment is underway, the long term goal is to always seek growth and rehabilitation, real positive change in the mindset of the offender.  Ultimately, we want to know that the offender has learned valuable lessons about life, about the terrible consequences of crime, and about the acceptable limits of human conduct, such that they will never commit crime after being released.  Having a system that uses the victim’s protest and ignores everything else, we rightfully have less trust and faith that the “system” is anything even resembling fair.

I doubt the general public shares my views about this topic.  Most focus on punishment, to the complete exclusion of rehabilitation.  Strangely, however, individuals always feel quite differently about the role of forgiveness and rehabilitation when it is their loved one sitting, suffering, in prison.

Perhaps a way of allowing the victim of crime to impact the prosecution and incarceration of an offender is to set limits.  For example, sentence a criminal, and then allow a victim’s input to be able to add up to 10% on to the term of incarceration.  Similarly, allow the victim to protest the offender’s initial parole eligibility date, but not any subsequent parole eligibility opportunities.  The Parole Board is quite capable of seeing a serious offense for what it is, and the inmate who wishes to make parole is still going to have to overcome plenty of challenges in order to make parole.  It just seems completely absurd to me that we would ever have a system wherein we keep the prison door locked for as long as a crime victim thinks it ought to stay locked.

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.

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.

My Thoughts on The Fiscal Year 2011 Statistical Report from The Board of Pardons and Paroles

I have always loved to study and interpret statistics. It can be pretty fascinating stuff, especially where the statistics deal with a topic of great interest.  Sometimes, statistics can really tell us an awful lot, if properly understood. I recently had a chance to sit down and study the latest statistics coming out of TDCJ’s Board of Pardons and Paroles, as well as a few pieces of data from the Corrections Division of TDCJ, and I thought maybe it would be worthwhile to reflect upon some insights I have gained from this review.

Let’s start with a few of the big picture items. None is bigger, to me at least, than the number 78,391. That number represents the number of prisoners in Texas who were reviewed for parole in fiscal year 2011. It never ceases to amaze me that just 18 people (Board Members and Parole Commissioners) can have enough time in their work schedule to determine the fate of nearly 80,000 people spread out across the state of Texas each and every year.

To be clear, the number of voters is actually 19, if you include the votes cast by the head of the Board of Pardons and Paroles, Ms. Rissie Owens.  However, Ms. Owens participates in less than 2000 voting decisions per year, most of which are likely SB 45 cases requiring a seventh and final vote to determine the outcome.  So, the 18 aforementioned people are performing the herculean chore of voting cases, lots and lots of cases, while Ms. Owens is performing the executive functions in Austin and in Huntsville.

This same group of just 18 people must also consider the outcome of over 20,000 decisions regarding shortway votes, otherwise known as discretionary mandatory supervision. The aforementioned 18 voters are also responsible for performing the administrative duties of their positions, including signing off on the modification of parole conditions for current parolees.  As if all of that wasn’t enough, these 18 very busy people must, per their own policy, visit inmates incarcerated for greater than 20 years who are being considered for parole.  Finally, the 18 people are regularly required to approve or  sign off on the decisions made by Hearing Officers regarding parole revocations. It’s safe to conclude that these 18 people are earning every single penny they are paid, and then some.

With almost 80,000 people considered for parole in Texas this past fiscal year, the number who actually received a positive parole vote was just over 24,000, which represents just 31% of the total.  The parole release rate has remained around 30% for the last four years.  This figure of 30% includes all parole considerations, not just one’s initial parole consideration.  So, what does this fact tell us?  Well, not too much about any specific case.  However, it probably tells us something about the underlying philosophy of the parole system.

Since TDCJ is only properly equipped and staffed to house about 156,000 inmates, and the inmate population has remained steady at approximately 156,000 during the last four years, the number of prisoners who leave TDCJ matches up quite well with the number of people who are entering TDCJ.  Coincidence?  You decide.  I fully believe that if the state had the money to build more prisons, those in charge, i.e. legislators, would build more prisons.  We have over 100 prisons already, but they would almost certainly build more for solely political reasons, if money was not a limiting factor.  Such construction would undoubtedly have the effect of creating a lower overall parole release rate than the 30% that presently exists.  Thank goodness they don’t have a bunch of cash on hand!

The statistics recently released by TDCJ also contradict inmate rumors that everybody is getting a favorable parole vote nowadays.  This is definitely not the case, especially given that the 30% figure and the inmate population total have both been pretty constant over the last few years.

One thing that has always piqued my curiosity is the voting trends of individual Board Members and Commissioners. Theoretically, the 18 people who cast the votes are following exactly the same set of rules, guidelines, and Board policies.  But, like all things in life that are completely discretionary, there are differences in the overall rate at which the individual voters allow offenders to leave TDCJ.  Moreover, these differences appear to be pretty consistent over time.  In other words, the voters who are less likely to provide a favorable parole vote to an inmate today have also voted in a similar manner in the past.  So, there really is some truth to long held inmate suspicions that the odds of being released on parole in Texas can go up or down, depending on who is making the decision.  However, inmates often exaggerate these differences between Board Offices or individual voters.  The one exception appears to be Amarillo.  I have never understood why, but it is irrefutable that Amarillo is the Board Office with consistently low parole release rates, and this has been the case for years.  Again, I do not know why this is the case, and perhaps the numbers do not tell the whole story, but the statistics do not lie.

When we look at the choices available to render a favorable vote, i.e. “FI-___ ”, I am of the opinion that FI-2 is quite under-utilized.  Of the 24,000+ favorable votes, just 13.92% are FI-2, and less than 3,500 offenders receive this vote per year.    FI-2 is really only different from FI-1 in one respect: FI-1 allows the offender to leave prison and begin parole as soon as the paperwork is done.  In most cases, that is less than a month.  FI-2, on the other hand, would allow the offender to be released prior to being reviewed again, but still requires the offender to remain incarcerated for a number of months, usually 3-9, before being sent home.

The reason I have for believing FI-2 is under-utilized is simply that a significant percentage of inmates are great candidates for parole, but in many cases, these people simply may not have served quite enough time in the Board’s view at the time of the parole review.  Yet, utilizing the FI-2 vote would serve several purposes simultaneously.  First and foremost, it would avoid the necessity and expense of pulling the file next year and reviewing the offender again.  Second, it would provide a very bright light at the end of an otherwise dark tunnel for an inmate and his/her family.  Wives, girlfriends, mothers, fathers, and of course children could have the peace of knowing that the end of the nightmare is in sight.  Never underestimate the power of hope!  Finally, having more FI-2 votes in place would provide the Board a little greater opportunity to delve into other files more deeply, interview more inmates, and maybe even have a little more time to enjoy the very important job they are having to perform.

There are many interesting aspects of the reports generated by the Board of Pardons and Paroles, and if you’d like to check out the Parole Board’s statistical reports, they can be found in the “publications” section of the Board’s website.

Why A Shortway Vote Is Never A “Sure Thing”

ne of the biggest myths amongst the Texas prisoner population is the belief that when a prisoner reaches his/her “shortway” date, a shortway discharge is pretty much a “sure thing.”  It’s actually NOT a sure thing, by any means.  The purpose of this blog entry is to provide a little insight into the concept commonly called “shortway”, and explain what it is, what it isn’t, and provide a theory as to why it’s such a poorly understood concept by prisoners and their families.

Let’s start with a little vocabulary.  “Shortway” is a slang term for the process of releasing a defined class of prisoners from TDCJ Corrections Division and into the custody of TDCJ Parole Division, to allow the prisoner to begin serving on mandatory supervision.  It is important to recognize that a very large percentage (well over 50%) of prisoners are not even eligible for a shortway release, because they have been convicted of one of the many felonies that simply do not allow for a release to mandatory supervison under any circumstances.  Typically, all the more serious felonies are in this category.

Most prisoners I have met already know if they are among the lucky ones who get to be eligible for parole and shortway, or if the only ticket home early is a traditional parole vote.  The confusion I usually see occurs when a guy mistakenly assumes the shortway date is a “gimme” if he isn’t able to make it home on an earlier parole eligibility date.  It’s understandable that a prisoner would make this erroneous assumption, and here’s why…

Like a regular parole vote, a mandatory supervision vote is completely discretionary.  Unfortunately, many people, including defense lawyers who are trying to get plea deals in place, mislead the person accused of crime by telling him/her that parole and mandatory supervision are all but guaranteed.  Neither one is anywhere close to being “guaranteed”.

In order to emphasize the illusory nature of mandatory superviosn, TDCJ calls the shortway vote “Discretionary Mandatory Supervision”.  Aside from the obvious contradiction between something being “mandatory” and “discretionary”, TDCJ further confuses people by labeling the shortway date as the “Projected Release Date” on the Offender Information section of their website.

If you tell a person that he is projected to go home on a certain date, it shouldn’t come as a big surprise that the person will come to believe he is actually going home on that date.  Makes sense, right?  Well, I for one think it’s pretty insensitive to have a website that tells a loved one’s family that he’s “projected” to be home on a certain date, and then regularly end up not sending him home, especially if the release was supposedly “mandatory”.  Perhaps it’s time to relabel some of this stuff.

Ok, so now we know that shortway release, otherwise known as discretionary mandatory supervision, is never guaranteed.  But, exactly what are the odds?  According to TDCJ’s own statistics, the odds are better than a parole vote, but far from guaranteed.

In 2007, the percentage of shortway eligible individuals released was 52.05%.  In 2008, the percentage dropped to 49.97% and has hovered just under 50% in the time since then.  It is important to remember that this number includes the re-consideration of people who have already been denied one or more shortway opportunities in the past.  Therefore, while I do not know the exact number, I suspect that a prisoner eligible for his firstshortway consideration may well only have a 35% or 40% chance.  That is so far from a “sure thing” that it is truly sad to think about the thousands of people who had assumed they were finally going home via shortway discharge, only to find out that they were going to spend at least another year locked up.

I handle both types of cases on behalf of prisoners, parole and shortway, and I have found that there is very little difference in the variablesunder consideration when the Board is looking at a particular offender.  Therefore, my approach to both types of release largely disregards the title of the manner of release (parole vs. discretionary mandatory supervision) and I focus instead on facts, information, and all the intangibles.

Innocent People CAN Go To Prison and They CAN Make Parole

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.