The Dark Side of “Drug Free Zone” Cases In Texas

A couple years ago, I interviewed a client who was convicted of a drug offense (possession of a controlled substance, with intent to deliver). It was a low quantity of meth he had sold to a fellow meth user whom he knew. The time and place for the transaction ( a store parking lot on a main highway) were both selected by the buyer. Unbeknownst to my client, the buyer was working as a snitch for law enforcement, trying to get a lighter sentence for his own similar drug case.

This particular case turned into a very harsh sentence out of a conservative county up in the Texas Hill Country, not too far away from San Antonio. It was not surprising to see a harsh sentence from a very politically conservative venue like the county where he was sentenced from. What caught my attention was that his case was classified as “3g”, which means he had to finish half of the sentence before he would even become eligible for parole. I had handled lots and lots of 3g cases over the years, but I’d never seen a simple drug case with no weapon involved being classified as 3g. After looking into it, I learned that his case was classified as 3g simply because it was a “Drug Free Zone” case. All Drug Free Zone cases are automatically classified as 3g.

Last year, I was interviewing another person who had been sentenced out of the same conservative county, for the same basic criminal behavior (possessing meth). I was shocked to see that this man also had the label DFZ attached to his offense. In all my time handling parole cases, I found it pretty coincidental that, after only seeing a small handful (5 or 6 total) of DFZ cases over the years, two of those cases would come out of a small county of far less than 100,000 people. My investigation of these two cases uncovered that the law enforcement personnel in the area are intentionally trying to use the DFZ laws to make sure the people they arrest for simple drug crimes were sent off to prison, and were kept in prison a lot longer.

What is a Drug Free Zone and Why Does It Matter?

Under Texas law, DFZs are specific geographical areas where the law allows for more serious consequences for drug crimes than other locations that are not designated as such. Most people who know a little bit about Drug Free Zones know they are somehow connected to kids and school campuses. However, the reality of the law is much broader than school campuses.

A Drug Free Zone is defined by Texas Health and Safety Code Section 481.134 as being either:

  1. Any location that is within 1000 feet of premises owned, rented, or leased by

            an institution of higher learning, the premises of a public or private youth                         center, ora playground;

  1. or any location that is within 300 feet of the premises of

            a public swimming pool, video arcade facility or on a school bus.

Punishment for Drug Free Zone Arrests

Under Tex. Health & Safety Code Section 481.134(b), the punishment for Drug Free Zone cases becomes more severe. The statute says:

(b) An offense otherwise punishable as a state jail felony under Section 481.112, 481.113, 481.114, or 481.120 is punishable as a felony of the third degree, and an offense otherwise punishable as a felony of the second degree under any of those sections is punishable as a felony of the first degree, if it is shown at the punishment phase of the trial of the offense that the offense was committed in a Drug Free Zone.

Drug Free Zones can easily be manipulated by law enforcement. That appears to have been what happened to my clients referenced earlier in this blog post. In both cases, the buyer picked the location of the buy, and the police already knew that the entire convenience store parking lot in question was just barely within 1,000 feet of the edge of the property of the local high school campus. Neither sale was to a student, and neither case involved anyone having anything to do with the school just down the street. One case involved an undercover cop as the buyer, and the other case involved a drug user working as a police informant. So, the police specifically chose a commercial parking lot of a gas station/convenience store that they knew for certain was within 1,000 feet of the edge of the land where a nearby school is located.

“Within 1,000 Feet”

The original intent of the legislature in enacting Drug Free Zone laws was to protect school children from drug dealers who brought drugs on or near their schools. A worthy goal, to be sure. However, in both of the above referenced cases, there were no children involved, and nobody ever set foot on any school campus. The important variable that allows police to abuse the Drug Free Zone laws so easily is the “within 1,000 feet” language. The courts have clarified that the 1,000 feet begins at the outer edges of the school’s property. This can have some pretty bizarre and unintended consequences, especially since many school campuses have sports fields, parking lots, or even vacant land owned by the school separating the school property from the surrounding community. Consider the school campus in the image below.

If you look carefully at the picture of this beautiful campus (a private school that has grades K through 12) you’ll see that there is a very clearly marked soccer field on the left side of the picture, and the school’s property line appears to be the roads adjacent to the campus. I chose this picture in part because of how clearly we can see that soccer field.

A soccer field, from end to end, is about 105 meters, or 345 feet. Now, look closely at the picture again, and if you consider that a drug free zone extends 1,000 feet from any edge of the school property, we’re talking about going all the way to the edge of the school’s property, and including the distance covered by the length of 3 soccer fields in every direction away from the school. That means the entire area in the photo would easily be within a drug free zone. All of the residential neighborhoods depicted in the picture would be in the drug free zone, and it would even extend well into the water of the large lake at the top of the picture. Any cars travelling down the roads that pass the school area would be going through drug free zones as well. Which brings me to my next point, learned from another case.

Another case I handled involved law enforcement, late at night, following behind a car, waiting until it was driving past a school on a public road before putting on police lights and making the traffic stop. Even though school was not in session, and even though the vehicle never went on school premises, it was prosecuted as a Drug Free Zone case simply because the car had drugs in it and drove past a school. If the police had made the stop and executed the same drug arrest just a couple of blocks earlier, it would not have been classified as a Drug Free Zone case.

All of this Drug Free Zone stuff may not seem like a big deal, but the punishment ranges in Texas for various types of felonies are very broad. For example, a first degree felony carries a range of 5 to 99 years. Since drug cases are quite often enhanced by virtue of prior offenses, Drug Free Zone cases become even more problematic, because they too enhance the charge against the defendant, AND they are 3g. All of this has the effect of sentencing defendants to longer terms in prison, and ensuring that these people will remain in prison much longer than they might have otherwise remained incarcerated. Therefore, Drug Free Zones are a powerful tool for the prosecutor during the plea bargaining process. The defendant faces a far greater risk of severe punishment in the event of a trial loss, and even the terms of the plea deal will be much worse for most defendants, simply by virtue of those three words, “Drug Free Zone”.

In all cases, the details  matter, and as a Texas Parole Attorney, part of my job is to make sure that the Texas Board of Pardons and Paroles is being given accurate information. We do not want the Board to erroneously believe that a person was selling drugs to kids at school when the truth is that police and prosecutors used the Drug free Zone laws to try and make sure someone went off to prison and stayed there for a very long time. That sort of “tough on crime” reasoning actually flies in the face of TDCJ’s stated goal, which is to rehabilitate the person.

Grappling With The Effects of “Life Without Parole” in Texas

Introduction

In 2005, Texas became the last of the death penalty states to approve “Life Without Parole” (LWOP) as a sentencing option. It was fiercely opposed by some, but welcomed as long overdue by others. Many people who are morally opposed to the death penalty were happy to see that prosecutors now had an alternative to lethal injection for those accused of the most serious crimes. However, many others who are already distrustful of over-zealous prosecutors and politically minded judges feared that LWOP would become too common, and that too many people who would have previously been given a life sentence (and would eventually become eligible for parole) would now lose out on that chance of someday leaving prison. We now have over a decade’s worth of TDCJ data to better understand how everything has evolved since the day LWOP became a sentencing option in Texas. This brief discussion of LWOP will attempt to demonstrate that the LWOP sentencing option has likely played a huge role in reducing the number of people sentenced to death, but it has also led to 50 to 80 people per year going away to prison for life who would have otherwise had a theoretical opportunity to someday be released on parole.

The Origin of LWOP

2005 marked the signing of the new LWOP sentencing law, but It took a little while for LWOP to become a commonly used option for punishment in Texas, and it is only available for a very narrow group of offenses. It is most commonly seen in capital murder cases, but it is also used in some of the most severe cases of repeated sexual abuse. Thus, most prosecutors do not routinely have to encounter scenarios where LWOP is even a possibility. Moreover, many capital murder indictments still end up resulting in murder plea agreements with very long sentences.

There are just 15 people in Texas who were sentenced to LWOP in 2006, the first year it was available to prosecutors. DA’s around the state had to consider this new tool, and carefully decide which cases were appropriate candidates for the LWOP sentence, especially given the reality that most of the murders and other violence is perpetrated by very young (and immature) people between the ages of 16 and 24. As the dockets around the state moved along, the number of LWOP convictions climbed to 56 by the end of 2007. By 2011, the annual number of people who were given LWOP climbed to approximately 100. The new additions to this infamous group has remained at approximately 100 annually, ever since 2011. In other words, each year, approximately 100 people are sentenced by the state to remain permanently incarcerated in prison until they die in prison, with no exception whatsoever, period.

LWOP Today

There are now approximately 850 people in TDCJ with LWOP sentences. Over 230 of these people are in their 20’s, and another 329 are in their 30’s. Thus, approximately two thirds of the people who received LWOP sentences are younger adults.

As many legal scholars predicted, the option of making sure death penalty candidates go to prison and never walk the streets again HAS undoubtedly translated into a drastic decrease in the number of people who are being sentenced to death. In 2016, the death penalty was only sought in four cases statewide, and it was ultimately chosen in three out of the four. This number of death sentences is way down from the days where Harris County alone had as many as 15 death penalty sentences in a single year.

It is also clear, however, that LWOP has been substituted in place of regular life sentences for many charged with capital murder (NOTE: a person convicted of capital murder and given a life sentence has a chance at being paroled beginning 40 years into their time served). In other words, in many cases where a judge or jury would not be willing to sentence a person to die by lethal injection, with LWOP, these defendants also cannot carry the hope of someday walking out of prison, even after 40 years, when most of these people will be in their 60’s or 70’s.

Unlike inmates on death row, the LWOP population is not housed in a specific prison unit. Instead, they are scattered throughout TDCJ’s prison system. I did a little digging, and learned some interesting facts about the LWOP population. Of the 850 people in TDCJ with LWOP sentences, 55 are female, and 795 are male. The racial composition of the LWOP group is as follows: Black 344 (40.5%), Hispanic 266 (31.3%), White 227 (26.7%), Asian 10 (.01%), and Indian 1 (.001%). Most of the LWOP inmates are convicted of capital murder, but a significant number are convicted of serious sexual abuse cases.

Perhaps the most important characteristic of the LWOP group is the individual age of each person. One of the main reasons LWOP has been justified is that it should be used in cases where there is no potential for rehabilitation. However, if we accept the basic premise that most people are capable of change, especially over time, the age of LWOP inmates should be a concern for those who believe in rehabilitation as a goal of incarceration. For this group of 850 people, punishment is clearly the emphasis, and rehabilitation is not a concern.

The LWOP inmate population in Texas should reach 1,000 during 2018, and if the trend continues, we will continue to see approximately 100 new inmates with LWOP sentences each year. It’s worth the time and effort to explore what can be done to ensure that all of these people were truly blameworthy enough to justify the permanent loss of freedom and designation as being unfit to ever see parole. Perhaps the idea of commutation will someday be seen as a real tool for future governors to use in those LWOP cases where it’s seen as appropriate. Because without the hope of commutation, there will undoubtedly be some people with LWOP who did not deserve their fate.

 

 

Is TDCJ Parole Division Following Their Own Supervision Guidelines of Sex Offenders?

texas-parole-sex-offender-monitoringIn September, 2016, one of my former clients, I’ll call him Tom, called my office in tears, and told me that he had just been released on parole after years of incarceration. Unfortunately, his tears were not tears of joy. Instead, he was devastated when his newly assigned parole officer told him  that he was not allowed to see his two teen children until after they turned 18. It would be four or five more years. Both kids were very upset at learning this sad news. Tom was devastated.

Although Tom had not committed a sex offense, he informed me that he was being told by his parole officer that the Board had imposed strict sex offender parole restrictions on him anyway. At this point, I became very concerned. Tom’s kids had visited him regularly while he was incarcerated, so it seemed bizarre that he would not get to see them or have any contact with them while on parole. Things just did not add up.

I called the Lead Voter that had voted to parole Tom, and he assured me that he had not imposed sex offender restrictions on him, and he promised that he had not imposed any kind of restriction on Tom’s ability to see his own children. However, he told me that the offense (Aggravated Kidnapping) was one in which the Board automatically imposed Special Condition X, and no Coleman Hearing was even available to challenge the imposition of Special Condition X in such circumstances. Absent a lawsuit to force the Board to stop treating Aggravated Kidnapping as a sex offense, I knew the Lead Voter was telling me the truth about Tom being stuck with Special Condition X, but I still did not understand why Special Condition X prevented parents from seeing their own kids. So, I tried speaking to the Parole Officer assigned to Tom.

The parole officer was a complete jerk. He was rude, arrogant, and he was completely uncaring of the situation my client and his children were dealing with. He was also unwilling to discuss the problem like a professional. He basically told me that he did not have to speak to me, so that was that, and he hung up. Following our exchange, I left several messages for his supervisor, and neither he nor anyone from his office ever called me back. Nice, huh? Our tax dollars at work.

In November, 2016, the father of one of my other recently paroled clients, let’s call him Dave, called me and informed me that Dave was being told he could not parole home to his wife and kids because he was “convicted of a sex offense”. He was not technically convicted of a sex offense, but  there was some inappropriate stuff that happened which might have caused a problem. Dave was 20 at the time of his offense, and his time spent in prison was really difficult, especially with a wife and two very young children sitting at home. Once again, I was seeing a situation where a parole officer was telling a parolee that he was not allowed to live with or see his own children. This just HAD to be wrong, and Dave’s situation was eerily similar to the situation I’d witnessed two months earlier with Tom.

I was very familiar with both these men and their entire history. There is just no way either one would ever harm their children. Ever. I found it highly unlikely that the Board was intending to prevent either one of them from being with their own families while on parole Once again, I called the Lead Voter, who is an experienced and intelligent Parole Board Member. He told me that he never intended for this man to be prevented from being with his wife and kids. He even went so far as checking into the situation a little bit, and he told me that he hoped I would be able to somehow rectify the situation. He claimed he could not easily interfere with the Parole Division’s day to day operations. Excuse me? He’d been appointed by the Governor of Texas to sit on the Board of Pardons and Paroles. If he couldn’t interfere, then who could?

I soon came to discover that both of the Lead Voters in these two separate cases had told me the truth; the Board had not knowingly imposed conditions on these men that prevented them from seeing their children. It was people working in the Parole Division of TDCJ who were orchestrating things. I decided the best thing to do at that point was to find out why the express intent of the Board of Pardons and Paroles was not being carried out by the Parole Division of TDCJ. It is important to understand that the Board of Pardons and Paroles does not oversee the parole operations because the Parole Division of TDCJ is not actually a part of the Parole Board, nor is the Parole Division subject to direct control by the Parole Board.

tdcj-parole-division-logoAlthough the parole officers in both cases flat out refused to speak with me, I did get one of their supervisors to give me a few minutes of her valuable time. She told me that sex offenders on parole in Texas do not get to live with their own children, except in very limited circumstances. I would have thought it was the other way around. In fact, I was still a little bit suspicious, but she swore she was telling me the truth. She was unwilling or unable to give me any indication as to what we would need to do to ensure that specific offenders did get to live with their own kids. Finally, she ended the call by telling me that if the parolees don’t want to follow the rules, they could always simply elect to go back to prison. She was not kidding, and she was not willing to further discuss the fact that the Board had not voted to deny these two parolees access to their own kids, and yet that’s precisely what was happening. She implied that this sort of thing happens all the time.

As frustrated as I was, I took this woman at her word; there was simply no recourse within the Parole Division. After all, she’s a Parole Supervisor, right? I reluctantly told both clients that even though the Board had voted in a manner that did not intend to keep them away from their kids, it looked like that was the normal way parolees were being treated. It seemed the Parole Division has the freedom to administer the parole of their sex offender parolees however they pleased . Therefore, I advised both men that they needed to try to make the best of the unpleasant situation, and do as the Parole Supervisor had told me; just  follow the rules or risk going back to prison. Both men did as I advised and tried to cope and accept the harsh reality of the situation.

It really bugged me that the Parole Board Member and Parole Commissioner had both told me that they had never intended to restrict these men from seeing their own kids, and I couldn’t help but wonder how many other families out there were dealing with this same kind of unjust situation. Something just wasn’t right if the people empowered to set parole conditions (the Board) are having their intentions systematically ignored by TDCJ Parole Division.

I went online and located a copy of the Sex Offender Program Supervision Guidelines as promulgated by TDCJ Parole Divison.  See PDF of manual here. This 23 page policy and operating procedure specifies the rules the Parole Division is supposed to follow when supervising sex offenders. I did not expect to find any relief for Tom and Dave in the policy manual put out by the Parole Division. When I reached page 6 and page 7, however, I was stunned. The Parole Division’s policy was clear, and it was also clear to me, at least in the only two cases I had been inquiring about, that The Parole Division was NOT FOLLOWING ITS OWN POLICY!

Both of my clients were supposed to be able to see their own kids, per the Parole Division’s own policy. One of these men had been on parole for nearly three months!

PD/POP-3.6.2 H states:

“Offenders…shall not be allowed to live with or have unsupervised contact with children unless the offender is the legally recognized parent of the child, or the Board has imposed a condition allowing contact.”

In other words, if the kid is yours, you get to see your kid. The policy manual makes a distinction between situations in which the other parent wants to allow no contact, and where the other parent wishes to allow contact. Since both of my clients cases involved kids whose mothers wanted contact, there was no valid basis in these cases to prevent these two parolees from seeing their own children.

Tom has now gone 3 months on parole without getting to see his kids. His parole officer threatened to give him a polygraph last week because he did not believe Tom has obeyed the parole officer’s illegal and improper command that he not see his kids. Tom said “give me the test”. The next day, Tom was assigned a new parole officer. He will meet her next week. I gave Tom a copy of the Parole Division’s rules, and I highlighted the applicable ones for the PO’s convenience. Hopefully, the new parole officer can read, follow rules, and treat people like human beings. As for Dave, we’ve now gotten him access to his wife and kids, even though the parole officer told both Dave’s father never to call him again. I guess he was forced to follow his employer’s own policies and he was pretty sore about it.

I wonder how many other parolees out there have been illegally prevented from seeing their own children while on parole. I also wonder if parole officers are being encouraged not to follow their own employer’s policies, or if these people simply don’t care.

Inmate Deaths In Texas Prisons

According to figures released by TDCJ, and recently shared by  Grits For Breakfast, roughly 400 to 450 people die while in TDCJ custody each year. See Grits’ Blog Post That means, on average, there is more than one inmate death every single day in TDCJ. My blog post is intended to answer the questions that naturally arise from such information. Who are these people who die in custody? What is the cause of their deaths? Are these deaths preventable? How many committed suicide? How many were executed? What happens after they die? And, perhaps the biggest question of all, assuming many of these folks did not die in their 20’s, 30’s, 40’s, or even 50’s… did these people all really have to get old AND die in prison (or prison nursing home/hospice)?

TDCJ Cemetary Pic
Grave Markers at the Joe Byrd Cemetery in Huntsville

Is 400 to 450 people a lot?

Before assuming the worst about connecting death with TDCJ in the same sentence, it is important to remember that the inmate population in Texas state prisons is approximately 150,000. With that many people locked up, some deaths are inevitable. Therefore, at least some of the 400-450 would be expected to die, irrespective of where they happened to be living when their death occurred. In order to demonstrate this important point, let’s consider free world deaths vs. prison deaths.

According to the Centers for Disease Control and Prevention, the overall death rate in the United States for the year 2013 was 821.5 people per 100,000. See CDC website Therefore, since we have approximately 150,000 prisoners in TDCJ, a typical community in the United States with the same number of people as TDCJ’s inmate population would actually be expected to have a death rate of over 1,200 people, which is almost 3 times the death rate inside TDCJ. However, before we simply conclude that the TDCJ death rate is really low, it’s important to remember that a pretty high percentage of the prisoner population is in good physical health, and a very high percentage of prisoners are under the age of 40. The age of the people in a given population group is an extremely important variable when looking at death rates,and prisoners tend to be pretty young compared to the overall population.

Executions

With all the energy and attention typically directed at the death penalty, it is important to remember that Texas “only” executes between 12 and 15 people per year, on average. See Wikipedia Therefore, executions account for around 3% of deaths in custody at TDCJ. We never seem to hear much about the other 97% (400+ people) who pass away while in custody in Texas prisons, and that is a shame.  What interests me, as a Texas parole attorney, is how many  of these 400+ people could have, or should have, been paroled long before they died.

Suicide

Prison can be a very difficult place, and for some inmates, it can completely overwhelm them. According to A September Grits For Breakfast Blog Post, 31 inmates committed suicide in 2014, and hundreds of others attempted suicide in the same year. 2015 figures are likely to be similar, based on what I’ve seen thus far. Suicides account for approximately 7% of Texas prison deaths, but that percentage could be much larger if more of those who attempted suicide had succeeded in their attempts. This suicide/attempted suicide problem is likely not easy to overcome in a penal environment, but awareness and education among prison staff, as well as proper medical intervention, would seem to be the best way to limit such tragedies.

It’s hard for me to say what led to all of these suicides, as every person’s situation is unique, and there is almost no coverage of these suicides in the media. However, inmate suicide seems to occur at a rate that is approximately twice the rate for Americans in general. See Wikipedia Chart  Frankly, I’m surprised the suicide rate isn’t much higher than it is. An inmate recently told me that there had been 2 suicides at his unit during the past year, and both involved inmates housed in administrative segregation. The isolation and lack of human interaction in ad seg can be debilitating, and it may push some people to lose all hope.

 Homicide

People often say that prison is a dangerous place. The conventional thinking used to be that inmates killing other inmates is a serious problem in Texas prisons. However, the recent data says otherwise, with the exception of 2012, a year in which 12 inmates were victims of homicide. In 2013, there were only 4 such cases, and in 2014 there was only 1 homicide. As of August 2015, there were just 2 such cases so far this calendar year. For some of the reasons noted above, I generally deplore the idea of using administrative segregation as a long term incarceration option. However, Texas prisons are undoubtedly safer overall because many of the most aggressive and dangerous inmates, including all confirmed members of prison gangs, are housed in the ad seg pods, where these people are much more limited in their ability to harm or kill other inmates.

Accidental Death

There’s good news in this area for Texas prisons. Inmates are not dying in accidents in very large numbers, and that is a pretty good indicator that TDCJ is doing most of what it can to make prisons as safe as possible. In 2013 and 2014, there were only 3 such deaths in each year. However, the 2015 number will be higher. As of August, 2015, there were 8 accidental deaths in 2015 thus far, and all of those are attributable to the deadly January bus crash near Odessa. Such accidents are prety rare, especially when you consider how many prison buses are in operation each day, all over the state of Texas.

TDCJ Bus Crash
Investigators On Scene Following TDCJ Bus Crash in January, 2015 Photo: Mark Sterkel, The Odessa American

“Natural” Death

By far, the highest percentage of deaths in TDCJ are labeled as “natural”. In 2013, there were 419 such cases, and there were 377 in 2014. Since death labeled “natural” accounts for about 90% of all deaths in prison, it’s important to understand how the word “natural” is being used. According to the TDCJ Emergency Action Center, the group that puts together these stats, “natural death” is defined as all deaths not classified as homicides, suicides, or accidental death.

I initially assumes the vast majority of deaths labeled “natural” occurred in a healthcare setting. It’s difficult to know for sure, but it’s really important to try to better understand all of this.

I’m told the TDCJ facility in Galveston is their largest hospital facility, and the second largest is the Carol Young facility in Dickinson, I checked the AG’s Custodial Death Report  and found that the two facilities combined for 119 deaths in 2013, 104 deaths in 2014, and 138 deaths so far in 2015. All of these deaths involved people incarcerated in TDCJ at the time of their deaths. Therefore, 119 out of the 419 “natural” deaths in 2013 occurred at one of these two hospitals, and accounted for 104 out of 377 in 2014.

UTMB-TDCJ-1
UTMB-Hospital Galveston, TDCJ’s 172 bed hospital

Putting It All Together

Executions carried out by the state, homicides, and deaths recorded as accidental all combine to account for only about 5 or 6 percent of the total number of deaths in TDCJ. Suicides account for another 7 percent, and the remaining 85 to 88 percent of the deaths are labeled as natural deaths by the TDCJ Emergency Action Center. However, of the nearly 400 such natural deaths that occurred in TDCJ, only about 100 to 130 per year appear to be happening in a hospital setting. The logical question, of course, is what’s happened in the other deaths, which far outnumber the ones in a hospital setting.

As a parole attorney, I am asked to maximize a  client’s odds to qualify for parole. In some cases, my efforts are based, at least in part, on their medical condition. If the medical situation is severe enough and well documented enough, the inmate might qualify for Medically Intensive Recommended Supervision .

The statistics above seem to indicate that a great many people are either not getting the benefit of the doubt when it comes to parole, based on the severity of their medical situation, or these conditions are not being documented well enough for the Texas Board of Pardons and Paroles to notice it and respond accordingly. The Board may well have released some of those who died in TDCJ, if only they had known that the prisoner was not likely to  be alive much longer. It’s a question of humanity and of human dignity. The data seems to suggest we have more work to do if we are to realize the goal of allowing a prisoner to spend their final years in someplace other than a prison or a prison hospital.

Board Member David Gutierrez Appointed To Head Parole Board

At the end of August, many were surprised, including me, when Parole Board Chair Rissie Owens abruptly announced her retirement after serving on the Board since the late 1990’s. The Governor appointed Board Member David Gutierrez right after Owens officially announced her departure.

Texas Parole Board Chairman David Gutierrez
David Gutierrez, Chair of the Texas Board of Pardons and Paroles

As recently as June, 2015, I was told Ms. Owens planned to serve as the Board’s Chair for at least a few more years. She had been in that position for the past 12 years. Of course, Governor Abbott has the absolute right to appoint whomever he pleases, and in this case, he chose to promote an experienced and well regarded Board Member to take over for Owens. I commend the Governor in his selection of David Gutierrez to take over as Board Chair. He is an excellent choice!

David Gutierrez has been a Board Member since 2009, and prior to serving on the Board, he was the Sheriff in Lubbock County for more than a decade. He has a friendly, professional, and easy going demeanor. In my dealings with Mr. Gutierrez during his tenure as the Board Member in Gatesville, I found that he possesses a genuine willingness to listen carefully and consider all relevant information in any given situation prior to making a decision.  In short, he is exactly the kind of man who can hopefully usher in an era of greater transparency and cooperation between the Board Members themselves, and those outside the Board who have dealings with the Board.

The full Board of pardons and Paroles had its first official meeting last Friday with Mr. Gutierrez as the Chair. Although that meeting was in Huntsville, it remains to be seen where future Board meetings may take place. Speculation is that the Board may meet in Austin in the future, as Austin is much closer to where Gutierrez resides. Another theory is that the Board may hold its quarterly meetings at alternating locations. Regardless of where the meetings occur, it will be interesting to see how the new Board evolves under the leadership of David Gutierrez.

Although I had some real concerns about how Ms. Owens handled a few important matters in recent years, there is no doubt that she worked very hard, and there is also no doubt that she left the Board in a much better place than where she found it when she took over as Chair. In other words, she did a lot of good for the Board and the people of the state of Texas, for a very long time, and it is completely unfair to label her negatively or see her overall legacy in anything other than a positive light.

When Will Texas Prisoners Receive Computers and Internet Access?

The title of this blog post is not meant to be a joke. I am being completely serious. Inmates should be given the right to access computers and the internet, right? It’s a really important question. Although many people foolishly believe inmates have cable television, air conditioned cells, great cuisine, and outstanding athletic facilities, the reality, at least for most Texas prison residents, is about just trying to survive each day. However, I ask the important question about computers for reasons that have very wide reaching implications. Please allow me to explain, in a bit of a rambling sort of way…

When my brother and I were 8 and 7 years old respectively, our parents bought a set of World Book Encyclopedias. The set spanned at least 4 feet across, and was neatly tucked into a bookcase in our family room next to a dictionary and thesaurus. Generally, whenever we wanted to understand something, anything, our parents said, “Go look it up”. I never knew for sure if that response meant they had no idea or if they simply wanted me to take the initiative and go figure it out on my own. Now that I am a parent myself, I think the truth is generally a combination of the two.

world book image

Back in the 70’s and 80’s, practically anything you’d ever want to learn could be found in those books located just to the right of our fireplace. More than a few of my school papers began with me reading the World Book Encyclopedia. I remember asking my parents why they had spent about a thousand bucks (a good chunk of money back in 1976) on those books. My mother consistently told me that people who took the time to learn what was in those books were the ones who had more opportunities in life. At age 7 or 8, that didn’t exactly get me very excited. However, my curiosity often led me to pluck a book and discover the answers to innumerable questions over the next 10 years. Often, my forays into those books had nothing to do with school, but was, instead, an effort to try to understand more and more about the world around me.

Today, encyclopedias are practically non-existent, aside from the occasional estate sale, where a complete set can be purchased for maybe $30 to $50. Today’s new, and vastly improved version of encyclopedias can be summed up in one word. Google.

We use Google today as a noun and a verb. Want to know how old President Obama is? Google it. Need to know how far you’ll have to drive to get from Dallas to Gatesville? Google it. Need to know the best way to make a meatloaf and then cook it? Google it. Google is a virtual world class university available to all of us, every day, 24-7-365. Wikipedia is a virtual encyclopedia within the larger internet community that, all by itself makes my childhood encyclopedias look pathetic by comparison.

With all the incredible online tools and resources for acquiring knowledge and information, we must ask why our prison population in Texas is never able to access any of it as long as they are incarcerated. That is a tragedy. It must be addressed, and the sooner the better! Most inmates in TDCJ spend at least a few years in prison, and many inmates spend a decade or more. We have over 150,000 minds and bodies serving prison time in TDCJ at any given time. This exceeds the combined student population of The University of Texas in Austin, Texas A&M University in College Station, the University of Houston, and Texas Tech University in Lubbock. Think about that for a minute before you read on.

texas inmate using a computer

Before anyone accuses me of wanting inmates to be able to sit and watch porn all day or chat online with 12 year old girls, I want to be very clear about something;

If we as a society expect people to go to prison in order to be “rehabilitated”, we must start by acknowledging that the more education one receives, both formal and informal, the more likely that person will be able to live in a productive, law abiding manner, respectful of laws, of others, and better equipped to deal with the challenges life inevitably brings.

I’ve read about the billionaires in Silicon Valley and elsewhere, and although I am no tech wizard, I am positive modern technology includes the tools to inexpensively allow nearly all prisoners the vast benefits available online, while still giving the prison system the ability to keep prisoners from streaming live sex feeds into their cells, or any other such nonsense.

TDCJ’s Mission Statement is to “provide public safety, promote positive change in offender behavior, reintegrate offenders into society and assist victims of crime.”

In my opinion, if we are ever going to realize the goals of TDCJ’s Mission Statement involving the promotion of positive change in offender behavior and reintegration of offenders into society, we must start by acknowledging the role computers and the internet now play in our lives, and in our personal and professional development.

Thoughts on Michael Morton’s Book

The Michael Morton case is one of the biggest stories in Texas criminal justice news during the past 10 years. The story is a lot more than just a tale about an innocent man who spent more than 25 years in prison for a crime he did not commit. It’s also a fascinating look into the darker side of criminal prosecution. Who better than Michael Morton himself to tell the story? His memoir is about a young man who suffered a grave injustice at the hands of lazy and arrogant police and a prosecutor from hell over in legendarily unfair Williamson County. But Morton’s book is also the personal story of how Morton coped with living all those years in a TDCJ prison and still coming out as a kinder, gentler, and more enlightened version of a man who was, by all accounts, a pretty good guy to begin with.

I bought Mr. Morton’s book about a week ago, “Getting Life”. I have to admit, I was skeptical that Morton would be capable of writing a book that would be written well enough to excuse him for not hiring a ghost writer or biographer. Well, I finished his book the other night, and I must say, I was completely blown away by how well he articulated his thoughts. He is a very good writer, and even if he had a little editorial assistance, there is no doubt that his book is his story, in his own words.

Michael Morton Book Cover Getting Life

I highly encourage anyone who has any interest in Texas criminal justice issues to buy Morton’s book!  Here’s the link to purchase it on Amazon.com:

 http://www.amazon.com/Getting-Life-Innocent-25-Year-Journey/dp/1476756821/ref=cm_cr_pr_product_top?ie=UTF8

Reviews of the book have been very positive. In fact, of the 165 reviews on Amazon.com, 92% of the reviews gave the book 5 Stars, and the other 8% gave the book 4 Stars. Not one review below 4 Stars, not a single one. Wow!

Aside from the 165 reviews on Amazon.com, consider the following high profile reviews of Morton’s book:

“Morton poignantly recounts half a lifetime spent behind bars and underscores the glaring errors of our justice system.” (Oprah.com)

“A stunning memoir…A great deal has been written about the shortcomings of the American criminal justice system, but perhaps nothing more searing than Morton’s book, ‘Getting Life.’ It is a devastating and infuriating book, more astonishing than any legal thriller by John Grisham…Morton is able to deliver this aching and poignant look at the criminal justice system only because he didn’t get a death sentence. ” (Nicholas Kristof The New York Times)

“Imagine spending twenty-five years in prison for a murder you did not commit. Imagine the murder victim was your wife, the love of your life. And imagine it all happened because prosecutors and law enforcement officials cooked up a case against you and hid evidence that would have identified the real killer. Michael Morton doesn’t have to imagine, because he lived it. It’s usually a cliché to say someone has been to hell and back, but in Morton’s case that is exactly what happened, and his stunning and lyrical account of the journey will break your heart, then make you mad, and finally fill you with hope.” (David R. Dow, Founder of Texas Innocence Network and author of The Autobiography of an Execution and Things I’ve Learned from Dying: A Book About)

“A true Texas story of how our system of justice can itself be criminal. Michael Morton’s powerful tale will take you with him into mourning, into prison, and finally, thankfully, back out into the light.” (Dan Rather)

“[An] eloquent, page-turning memoir.” (Publishers Weekly)

“Even for readers who may feel practically jaded about stories of injustice in Texas – even those who followed this case closely in the press – could do themselves a favor by picking Michael Morton’s new memoir…It is extremely well-written, insightful, infuriating, and, in places, quite funny.” (The Austin Chronicle)

“A lively and intimate account of his rise from pariah to celebrated survivor after DNA evidence and determined lawyers proved his innocence after 25 years in prison…What makes Morton’s story so intriguing is the ease with which most people can put themselves in his place — the victim of a crime treated like a criminal — and wonder if they could cope, let alone survive.” (Austin American-Statesman)

“A jarring testament that truth really can be stranger than fiction…the writing is snappy and clean, with more wit than one might expect.” (San Antonio Express-News)

I don’t want to give away all of the rich insights and perspectives Morton shares with his readers, but I was really interested in finding out precisely how the police and prosecutors ended up getting Morton locked up with a life sentence for murdering his wife, when in fact, he loved her dearly and would never have even dreamed of doing such a thing. That story is the one that people need to experience. Although Morton’s case is remarkable, it is worth wondering how many innocent people are sitting in prison who were armed with far less brainpower,  and far less qualified legal representation.

 

Parole Guidelines In Texas

Introduction

The Texas Board of Pardons and Paroles exercises complete discretion to make whatever parole decisions it deems appropriate. However, from 1985 to the present, the Board has been legally required to employ some sort of method or system to ensure that the overall result of the Board’s voting process corresponds to some rational methodology. The Parole Guideline scoring system is the system used in Texas. It is widely used, but poorly understood by people outside of the parole community.

One broad legal mandate in the parole process is to more readily grant parole to the prisoners who represent the lowest risk to society. Conversely, the Board is also legally required to make parole less likely in the case of those prisoners who are said to represent the greatest risk to public safety. The purpose of this blog post is to provide the reader with a better understanding of the current Texas Parole Guidelines and discuss the relative importance of the guidelines in the voting process.

What Is A Parole Guideline Score?

The voters at the Parole Board look at a number called “The Parole Guideline Score” during every person’s parole review. The Parole Guideline Score is a number from 1 to 7, and every TDCJ offender has been assigned a specific guideline score. The guideline score of a given inmate does not easily change, but over time it can change a little bit.

Under the Texas Parole Guidelines, a score of 1 is the lowest, and such a score is supposed to represent a very poor prospect for being successful on parole. Such a person supposedly represents a significant statistical risk to public safety. A score of 7 supposedly represents the person who is most likely to succeed on parole and stay free of any future criminal behavior.

Parole Guideline Score

The Guideline as a Guide

The Board cautions that the Parole Guideline Score is exactly as its name implies, a guideline. The individuals at the Texas Board of Pardons and Paroles who are entrusted to vote cases are free to vote however they want, and the guideline score may play a minor role, a major role, or, in unusual situations, it may play almost no role at all in the voting decision of any particular case.  For some unknown reason, however, the Board will not reveal any given TDCJ Offender’s parole guideline score to people outside of the Board. Offenders and their attorneys aren’t even informed as to what the Board has calculated their score to be. This has always seemed odd and troubling to me.  Fortunately, with some work and a solid understanding of the components of the score, one can still determine an offender’s guideline score, even without the Board’s cooperation. It would be nice, however, to know the score that is being used at the Board in a given case, just in case a mistake has occurred and an offender or his attorney can identify when he has been given an incorrect guideline score. 

The Components of a Guideline Score

The Parole Guideline Score for TDCJ offenders is calculated using a formula that supposedly includes all of the major factors needed to adequately assess risk.

There are two components to the formula:

1. The offense severity rating, and

2. The risk assessment instrument

The Offense Severity Rating

The offense severity rating (OSR) is the more simple of the two components. Each and every one of the 2500+ felonies classified under Texas law has been assigned a single OSR. The OSR can only be one of four possible values for male offenders, and only one of three possible values for female offenders.  For males, the worst possible OSR is “Highest”, followed by “High”, followed by “Medium”, with the last OSR labeled as “Low”. In all cases of persons incarcerated for more than one instant offense, the OSR used in their calculation is the one corresponding to the most severe offense of the instant offenses.

The Risk Assessment Instrument

The OSR is combined on a two dimensional chart with a number called the Risk Assessment Instrument (RAI).

The RAI is derived by combining specific data from the correct answers for two specific sets of questions. These two groups are known as static factors and dynamic factors. We take the static factors and the dynamic factors and follow a simple formula in order to derive the RAI.

Static factors include:

  1. Age at first admission to a juvenile or adult correctional facility,
  2. A history of one or more supervisory release revocations for felony offenses
  3. Prior incarcerations
  4. Employment history
  5. The commitment offense(most severe if more than one)

The static factors are the ones that, unfortunately, you cannot do anything to change. These are, for the most part, where your past catches up with you.

Dynamic Factors Include:

  1. The current age of the offender
  2. Whether the offender is a confirmed member of a security threat group
  3. Education, vocational, and recognized OJT programs completed during present incarceration period
  4. Prison Disciplinary Conduct
  5. Current Prison Custody Level

As the name implies, dynamic factors are those variables which can change, for better or worse. The dynamic factors component of the RAI is the reason the overall parole guideline score can change slightly over time.

Putting It All Together

Once you have the Offense Severity Rating (OSR) and the Risk Assessment Instrument (RAI) in place, it’s a simple matter of looking at a chart that has an axis for each of the two variables in order to determine one’s overall Parole Guideline Score.

There are some who believe the Parole Guideline Score is really the only thing that matters to the Board. I disagree. I think it’s more correct to state that the guideline score is an important consideration, but it’s really more of a tool that experts claim voters can use to help them make wise decisions. If, however, one has a poor guideline score, it is very important to be realistic about making parole quickly or easily. Moreover, since at least a portion of the data used to get a score can be changed for the better, inmates with poor parole guideline scores would be wise to understand how they can take steps to improve the score, even if such improvement may take years to put in place.

How To Make Parole In Texas

Inmates and families often ask me how to make parole in Texas. Obviously, the sooner the better. In other words, what’s the magic formula for making parole?

question

Unfortunately, parole law and the process used by the Texas Board of Pardons and Paroles cannot easily be translated into an easy sound bite. However, I believe the question is still important, and worthy of careful analysis. Frankly, it should be something  considered by every single inmate who is sincerely trying to better understand how the path to parole might look.

Rather than attempt a magic formula, I believe the question is still worth a blog post wherein I try to discuss it, without regard to any specific inmate’s situation. Although this is a general set of observations and opinions from a parole lawyer in Texas who still learns something new every single day, I do feel comfortable discussing all of this with some degree of confidence, mainly because my opinions are based on my  observations and daily experiences over the past 7+ years.

The Offense(s)

The first place most people will look in almost any parole review is the “instant offense” or “instant offenses” as the case may be. In other words, what crimes is he imprisoned for? By the way, I use “he” or “him” simply because 93% of TDCJ inmates are men. I certainly do not mind using “she” or “her”, but using the male pronouns seems more logical.

Sometimes, the person is sent to prison for a new crime or a series of crimes, and the person was already on parole for one or more past crimes. This means, in most cases, that the prior crimes will also be subject to some level of scrutiny by the Parole Board Member or Commissioner looking at the file. It can get complicated when there are several crimes under consideration simultaneously.

Prior Offense(s)

Aside from the above situation of coming back to prison and having to finish a prior sentence, a much higher percentage of inmates may be serving time for one or more crimes, and there are still other crimes that have occurred in the past. These past crimes, whether misdemeanor or felony, are part of an inmate’s file at the Board. Even charges that were dropped and never resulted in a conviction are contained in the Board’s file. If it’s in there, and they look, it still could have a real effect on the decision making process.

Important Facts Relating To The Offense(s)

You would think that the paragraph labeled “Offense(s)” would necessarily include this topic. However, it really is true that the titles of the various crimes often seem to carry much more weight than the actual facts surrounding the crime.  I say this for two very simple reasons. First, the time and effort required to try to properly understand the facts of any specific crime would require a voter to spend more time on each case than is generally possible, especially given the time constraints faced by voters at the Board. Second, the Parole Guidelines are based on a formula that is supposedly based on academic research, and the formula does not have a way of making the guideline score change by virtue of specific facts. In other words, when they plug in their number for the offense severity rating of a specific crime, the number is the same for every person with that same offense title, notwithstanding the infinite variety of possible circumstances surrounding any particular criminal offense.

Age

Younger people, on average,  commit more crimes than older people, and younger parolees come back to prison more often than older parolees. Finally, younger inmates get into more trouble while in prison. Given all of these facts, age matters. There are a bunch of reasons that can be found in scientific and sociology texts, but suffice it to say that younger people present more risk for the parole officials. However, even though age can hurt a person’s chances in some circumstances, it can help in others. If the crime occurred at a relatively young age, and that inmate is now 10 or 15 years older, a lot of maturity and wisdom might exist that was absent in younger years. Also, and this is just my own theory, but I think people over 35 or 40 usually appreciate that life truly is short and loathe the idea of spending any of their precious life in prison. Whereas, some young folks take the idea of prison as a mere inconvenience or hassle that must be dealt with. Thus, whatever limited time we are fortunate to enjoy on this Earth, the older people realize that the clock is ticking.

Drugs & Alcohol

I have often said that if you took drugs and alcohol out of the picture, as much as 70% of the people in prison would not be in prison. I have no science to back me up, but I’m sure it’s been studied and researched. These substances are, however, a double edged sword. On the one hand, the drugs or alcohol do offer a plausible explanation (or at least a partial explanation) for why something stupid and senseless occurred. However, it is widely known that drug and alcohol abuse and addiction is a huge factor in recidivism. Recidivism usually means parole revocation.

Therefore, while drugs and/or alcohol use or abuse issues might sometimes help to improve one’s chances for parole because such behavior explains why an otherwise good person would make poor choices that landed him in hot water, the same issue may well make the parolee far more likely to end up back in prison later. The facts of the drug or alcohol problem are relevant, and need to be discussed and addressed in most cases.

Conduct While In Prison

I have always believed this factor deserves more consideration, but it does receive some attention, particularly in an otherwise close case. In other words, the Board can look to the “institutional adjustment” and see whether the guy was good at following the many rules in prison and if he managed to stay out of trouble. It is also worth looking at whether the inmate took it upon himself to learn a trade, obtained any formal education, or somehow expanded his mind through his own initiative and hard work.

Life Before Prison

Although the aforementioned criminal record is high on the list of things looked into by the Board, many people have done some really commendable and special things in life before coming to prison. It would be a mistake to assume that such things would be immaterial to the parole voters. Nearly every person has done some good in life, and the Board will look at those things, if properly brought to their attention.

The Plan for After Prison

Everyone says they are never coming back to prison, and yet somewhere in the neighborhood of 20% are back in prison within five years of leaving. Therefore, a quality individual plan using sound logic and containing specific details can enhance the opportunity to go home on parole. However, it would be a mistake to assume that this factor will supplant any of the prior factors in the eyes of the voters.

In summary, there is no magic answer to the question of how a person can make parole. The law, the crime title, the crime facts, life before prison, life in prison, and the plan for after prison, and many other possible issues can each be important to the voters at the Texas Board of Pardons and Paroles. In the cases I handle, the search for the answers to all of these questions begins with an interview process that eventually culminates in a presentation to Board officials who, it is hoped, will become much more informed about who my client really is, what he really did and did not do wrong, and anything else that I believe might bear on their decision.

3g Offenses in Texas-The Hidden Problems

MistrustThose

As a Texas parole attorney, I have come across a lot of people who are incarcerated for having committed one or more crimes defined as 3g offenses in Texas. It is quite common for inmates and their families to be poorly informed about 3g, especially prior to coming to prison. That is unfortunate. Even where there is a basic understanding of 3g, people usually fail to appreciate the full extent a conviction for a 3g offense in Texas can have on the parole consideration process at the Texas Board of Pardons and Paroles. The purpose of this blog post is to point out some very unpleasant, and in many cases, blatantly unfair consequences of being convicted of a 3g offense in Texas. In my next blog post, which will hopefully be in place soon, I’d like to offer sensible ways to address the concerns behind the perceived need for 3g, without allowing titles of criminal offenses to take precedence over the true facts and information associated with each particular case.

The term “3g” is a slang reference to § 42.12 (3)(g) of the Texas Code of Criminal Procedure. It was a change to our state’s criminal law that was put into place by “tough on crime” politicians who wanted to gain favor with constituents by changing the law so that people who are convicted of the more “serious” crimes would not be eligible for any parole opportunity until they had served at least 50% of their prison sentences.

The argument for supporting the change to the law in the first place likely included the assertion that the “bad” criminals were sometimes getting inappropriately light sentences and, even worse, that these bad actors were too often getting out of prison way too soon regardless of the length of their sentences. I suspect the motivation for creating 3g offenses in Texas was a political one that played on people’s (voters’) fears in order to make sure that the people who got locked up for the bad stuff stayed locked up.

The list of crimes that are labeled 3g offenses in Texas includes the following:

  • Capital Murder
  • Murder
  • Indecency With a Child By Contact
  • Aggravated Kidnapping
  • Aggravated Sexual Assault
  • Aggravated Robbery
  • Sexual Assault
  • Injury to a Child
  • Injury to an Elderly Person
  • Injury to a Disabled Individual
  • Sexual Performance by a Child
  • Criminal Solicitation
  • Any Crime Where a Deadly Weapon Was Used Before, During, or After the Offense

 On the surface, it probably seems to most people like a wonderful idea to treat the crimes in the list above in the manner that 3g requires. However, despite the seductiveness of having a nice blanket rule for what would appear to be punishments only used against the worst of the worst, it’s actually a terrible idea, for a whole bunch of reasons.

Problem Number One

The first criticism I have of the 3g concept is that it blatantly presumes parole authorities are idiots. After all, there would be no mandate requiring a prisoner to serve at least 50% of a sentence if there was faith in the ability of parole decision makers to look at the facts and circumstances of each case, consider what really happened, and take into consideration anything else that might make serving more or less time appropriate. The 3g rule simply applies a “one size fits all” approach that only considers the specific title given to what happened, and literally nothing else.

Perhaps the best way to illustrate the absurdity of the 3g blanket approach is to put it into context in the real world.

The Law of Parties

Let’s consider the law of parties first. Suppose a murder occurs, and the victim is shot one time in the chest and dies. Assume the police are eventually able to determine that 3 men were probably at the scene of the murder. The police know one, and only one of them could have pulled the trigger because only one shot was fired. The gun was never recovered. Let’s further assume that they arrest one of the men and he says nothing. The second man gives a story that is partially true, but he makes the other men look more culpable. The third man is finally caught several months later, and he tells the police a completely different story than the man who had already “cooperated”.

All 3 men get sentenced to murder through guilty plea agreements, and sentences of 20, 30, and 35 years are handed down. A few years later, proof develops that the man who got 20 years was probably the shooter, and proof also comes out that neither of the other 2 men had any history of violence and neither believed any violence would occur that night.

Because of the 3g provision, all three men will serve one half of their sentences for sure, and for other reasons, they will each likely be denied parole several times.

The “Use of” a “Deadly”  “Weapon”

The next criticism of the 3g offense effect on parole in Texas involves the catch all provision; use of a deadly weapon. Aside from all the creative ways prosecutors have twisted the words “deadly weapon” over the years, the criminal statutes and cases from the Court Of Criminal Appeals have practically allowed the word “use” to mean possession, “deadly” to become “harmless”, and “weapon” practically means “physical object that could, if used in some way, become a means to inflict any kind of harm, not necessarily deadly harm”.

You never really appreciate how the law twists language to suit political purposes above all else until you’ve been paying close attention to what’s really happening in the legal system. Such twisting and distortion is not limited to criminal cases. For many years, the Texas Supreme Court re-write the common law of Texas to drastically limit the rights of individuals to hold corporate wrongdoers and insurance companies responsible for the wrongs they inflict. The Texas Court of Criminal Appeals has had its own version of gutting individual rights, but at TCCA, it’s those accused of crime who feel the effects. But, I digress. Let’s look at another example of 3g in action.

Let’s say a guy with a drug problem is not very big, and is not at all violent. He’s never been charged or convicted of any sort of violence. Let’s further assume he lives in a rough area of a major city, where he has been robbed and beaten up on at least a couple of past occasions. People have robbed him of his money while he was trying to buy drugs, and he’s been robbed of his drugs just after buying them. So, he decides to carry a gun under the seat of his car, just in case his life is ever on the line again. It’s an old gun, he’s never fired it, and it has no bullets in it. But, he figures he can at least use it in an emergency to buy himself time to get away if someone is trying to rob him or steal his drugs. Whenever he goes to buy the drugs to feed his addiction, he’s always nervous and scared.  He has cash in his pocket, and the seller of the drugs (and maybe others) will always know when and where the guy is going to be when he is going to be making his drug purchase.

 If the seller tries to rob the buyer in a drug transaction like the one contemplated above, the buyer may end up pointing his gun in order to keep from getting robbed, or to make sure that the money just stolen from him is returned or exchanged for the drugs, as previously expected. The seller can call the police and say the buyer robbed him at gunpoint, and if the buyer is arrested after the fact, the resulting conviction would  almost certainly be for a 3g offense. (The above scenario played itself out on at least two clients I have previously represented.)

Even if the gun was a toy gun, the result would likely still be the same.

But, you say, why would anyone ever plead guilty in that scenario if he was the victim, and not the perpetrator? Well, here are a few possibilities…

1. He has a bunch of prior convictions for drug crimes and therefore fears he may not be believed. The jurors tend to think a felony conviction in the past implies the person accused is incapable of providing honest and reliable information.

2. The prosecutor tells him he’ll offer 10 years, but if he goes to trial, he’ll ask the jury to give him 50 years. This kind of bullying is a routine part of our criminal justice system in Texas. As long as all first degree felonies (a very broad group, by the way) carry the potential punishment range of 5 to 99 years, such prosecutor plea bargaining abuse will continue unabated.

3. His lawyer is not the kind of person who cares, and worse still, he seems poorly qualified to argue anything well, let alone win as a trial lawyer. This is, unfortunately, more common than most people believe.

4. He’s afraid the seller will have him killed if he somehow convinces the authorities that the seller is a violent drug dealer, if they even care.

The 3g law makes no distinction between toy guns and real guns, loaded guns and unloaded guns, guns fired and guns that were never even pointed at anyone and remained under the seat of a car, butter knives and swords, cars used to try to run over a police officer, and cars used to try to drive away from a possible arrest.  I remember a case where a guy I represented was fighting with his girlfriend while she was trying to get her car started, and after both people had started hitting each other, he swung a pair of jumper cables at her and the metal end stuck her and bruised her. They charged him with a 3g offense. Now, I suppose one could literally kill another person with a pair of jumper cables by repeatedly and savagely swinging those cables, but if you really wanted to use the jumper cables to kill in the most effective manner, it would seem that strangulation would be far quicker and easier. Ah, but if we made the word “weapon” and “deadly” and “use” mean what we all commonly understand them to mean, they would not get to scare people into taking plea agreements. Accordingly,  3g pretty much allows the prosecutor to use their creativity and turn the English language upside down.

At its most basic, the push for having 3g in the first place can be interpreted as a lack of public confidence in the judges, courts, and prosecutors. However, perhaps the biggest lack of confidence in enacting this blanket law surely must relate to the parole board.  The politics of making people serve longer in prison is immensely popular with voters. But, as can be easily demonstrated, the 3g offenses in Texas create absurd possibilities in terms of punishment. So, while we call it a justice system, we are stuck with countless unjust results in the application of the 3g rule. How can we expect people to have faith and confidence in a system where stuff like that can occur? I’m just sayin…