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.

Blogging from the iPad at 4am…What?!?

Insomnia is not so bad, until you try to get out of bed for something important that occurs in the morning and cannot be rescheduled.  Arrrrggggghhhh!  I suppose that energy drink I consumed at 8:45pm wasn’t such a great idea, especially because I skipped the workout at the gym after consuming said energy drink.

In about 5 hours, I will regret my curiosity, but I am typing this post on my iPad, something I have never tried before.  It just seemed like something I ought to try, and no better time than the present, right?  No need to answer that question, I already have a feeling I will wonder what in the world I was thinking.

After pretty much neglecting this blog for the past 6 months, I am ready to return to posting stuff, and my iPad will certainly do the trick when I am in a pinch, but the good old fashioned computer with a separate keyboard and monitor is still the preferred way to do this.

So, why did I neglect this blog for the past 6 months?  Well, it’s a long story, and it is well after 4am, so….

Suffice it to say I had a few very good reasons for setting the blog aside for a while, and all of them combined made it nearly impossible to get to the blog.  The neglect of the blog is officially over, and I am officially ready to fall asleep now.  Until next time…