Monthly Archives: October 2014

The Problems With Using 2D (Nature of The Offense) As a Reason For Parole Denial

Many of the prisoners held in TDCJ for long periods of time are people who are convicted of what we would all likely agree are serious offenses.  For these people, making parole can be quite a challenge.  One of the most legitimate complaints I have heard over the years from prisoners is that the reason given for their denial “2D” seems inappropriate and unfair.  I must admit, from a logical standpoint, such a complaint seems entirely justified.  I hope this blog post will explain why 2D is not a very credible or valid reason for denying one’s parole, and using it only serves to further undermine people’s faith in the fairness of the parole system.

When the Texas Board of Pardons and Paroles makes a decision to deny a person parole, the law requires them to give a reason or reasons for the decision.  Because of the sheer volume of files at the Board, they often do not give prisoners any detailed guidance as to why they did not make parole.  Instead, the Board picks one or more reasons from a pre-ordained list of choices that are coded as follows:

1D Criminal History

2D Nature of Offense

3D Drug or Alcohol Involvement

4D Institutional Adjustment

5D Adjustment During Periods of Supervision

6D Participation in TDCJ-CID Proposed or Specialized Programs

7D Time Served

8D Felony Offense (while incarcerated)

9D This is Applicable To Mandatory Supervision Only

10D Other (provide written details)

There are problems with using many of these pre-scripted responses, and an analysis of all of them is certainly worthwhile.  However, this post will focus on 2D only.  Perhaps I will compose blog posts in the future about some of the others.

On the written notice of parole panel decisions that is supposed to be given to all inmates following a Board decision, whenever 2D is listed, alone or in combination with other reasons, it looks something like this:

2D      The record indicates that the inmate committed one or more violent criminal acts indicating a conscious disregard for the lives, safety, or property of others; or the instant offense or pattern of criminal activity has elements of brutality, violence, or conscious selection of victim’s vulnerability such that the inmate poses a continuing threat to public safety; or the record indicates use of a weapon.

The First Problem With Reason 2D

The first and most obvious problem with the content of 2D is that the word “or” is used six times.  Six!  Now, I have always considered myself pretty good at reading and writing, and I had to scratch my head in bewilderment the first time I read the definition of a 2D denial.  It’s so vague that, out of respect for the inmates, and the English language itself, they need to ask themselves how it is possible that this is acceptable to anyone.

I’ll never understand why they used “or” so many times.  If I told you I was right or left handed, am I saying anything at all?  If I said I’m right or left handed and I like basketball or football, does that make things any more clear?    Prisoners and their families deserve better!

The Second Problem With Reason 2D

The second problem with 2D is that it references “one or more violent criminal acts indicating a conscious disregard for the lives, safety, or property of others.  The Texas Penal Code references two broad classes of crimes called “Crimes Against Persons” and “Crimes Against Property”.  Most crime are, by definition, intentional.  Intentional crimes involve, by definition, a conscious disregard for other people’s rights, including their lives, safety, or property.    Therefore, almost every offense under Texas law that landed a person in prison in the first place could later become the sole basis for denial of one’s parole under 2D.

The Third Problem With Reason 2D

The third, and perhaps most fundamental problem with using Reason 2D in Texas Parole involves a myopic focus on the crime itself, rather than on the person presently under consideration, and such a narrow focus gives no regard to the legislature’s stated parole eligibility dates themselves and the part of the Board’s mission devoted to the rehabilitation of offenders.  If we are going to use the offense itself as the basis for not letting a person out of prison, we need to see a dramatic limitation of such a reason not to parole someone, because prisoner rehabilitation is blatantly disregarded any time 2D is used.

As many inmates have said to me over the years, nobody can change what happened in the past when a crime was committed.  Instead, what many of the most remorseful and honorable inmates try to do is faithfully and consistently show everyone that the person who committed the crime is not the same person as the person under consideration.

Another point that bears consideration is that the penalty (the number of years in prison) was selected or blessed by the Judge, with the full knowledge of when the inmate would become eligible for parole. Therefore, one could make a very strong argument that the “nature of the offense” was already fully taken into consideration at the time of the conviction and sentencing.

Since the crime itself cannot ever be changed, and if 2D is the reason given even once, why how could we logically ever believe it’s appropriate to grant parole?  After all, if the use of the weapon clause is the reason 2D is used, we can never go back and change whether or not a weapon was used.  Similarly, we can never go back and say that there was not a disregard for other people or that the act was violent.

I’m afraid that the complaints do seem justified; , in all but the most extreme and horrible of cases, 2D is just an excuse to avoid having the courage and the will to look deeper than the title of the crime and the police/prosecutor’s version of the crime itself.  Nonetheless, the Board must be willing to place the focus where it belongs; on the person who is presently incarcerated, not on what he did.  After all, in general, if he hadn’t done something bad, he wouldn’t have been sent to prison in the first place.

 

Doing Your Own Parole Packet? You May Want To Consider Some Things.

Parole Packets can be a very important part of an offender’s parole file.  To date, I estimate that I have submitted approximately one thousand parole packets to the Texas Board of Pardons and Paroles over the past 8 years.  Fortunately, I enjoy the process of building my clients’ packets, and each and every one is different.   I use my packets to reinforce the information and key points I want to stress to the Board when I get the valuable opportunity to advocate and discuss my clients with the voters at the Board.  This blog post will give my opinion about the points you may want to consider when doing your own parole packet.

As a preliminary matter, it is essential to note that The Texas Board of Pardons and Paroles has to make parole and mandatory supervision determinations nearly one hundred thousand (100,000) times each year.  Most file decisions require a majority of the three voters (SB 45 cases require even more votes).  Even if we were to assume there are no split votes (and there are), this means that approximately two hundred thousand individual decisions must be rendered by approximately 20 people, every year.  That works out to approximately 10,000 votes per voter annually, at a minimum.

Now, let’s assume that the voters each work approximately 50 work weeks per year.  I would guess it may be slightly less, given occasional position vacancies, vacations, medical or family emergencies, etc.  Then, assume that each voter has some administrative duties, occasional travel requirements, and non-productive work time.  Hey, we all have our moments where we ask a co-worker how their sick family member is doing, check messages on our phones or email accounts, discuss the latest on the Cowboys, Spurs, or some other such matter.    I think it is safe to assume the voters have about 30 hours of actual file review work performed each week, and 50 weeks per year, as I indicated, is probably being generous.  So, here’s the reality, as much as people wish it wasn’t true…

Each voter has to make at least 10,000 voting decisions each year, and only realistically has about 1,500 hours to make all these decisions, including the time it takes to enter the voting decision, and the official reason(s), into the computer system.  That means, at most, each voting decision allows just nine minutes for the voter to consider everything, make a decision, and document the decision.  It is not an exaggeration to assume that only 5 minutes, on average, can be allocated to reading what outside sources have contributed to the Board’s file.  Thousands and thousands of people have their hopes and dreams hanging in the balance, and those hopes and dreams are in the hands of people with precious little time to come to a decision about what to do.

I explained all of the above not to depress or anger anybody, although those are both normal reactions to the reality of the situation.  Instead, I have provided the above information to provide context and emphasize the importance of the advice provided in this blog post.

If you are going to forgo legal representation and do a packet on behalf of a loved one, please understand some of the realities…

1.     Your packet may not even be read.  For example, if a person just picked up 2 major cases for fighting or assaulting a correction officer, and parole was already a longshot, do you really think the voter will spend 20 minutes reading what you have to say?

2.     Type the packet.  If you want your packet to be read, make sure it’s typed, with the possible exception of neatly written support letters, although these should usually be typed also, in my opinion.

3.     Limit the number of support letters.  Given the above discussion, this may seem obvious, but I believe it’s pretty much pointless to put 20 or 30 support letters in a parole packet.  Less is more.  I rarely see a need to put more than five support letters in a packet.

4.     Stay organized!  The reader needs to know how you’ve organized everything you want them to read or see.  This is one of the biggest mistakes I typically see when I see packets submitted by inmates and their families.

5.     Stay on point.  We all tend to ramble at times.  However, if you ramble when you write, you risk losing the interest of a reader who has precious little time to waste.

6.     Educate The Board.   Tell the Board relevant stuff it may not know.  The definition of “relevant” is different for everyone, but you need to at least understand that what is important to the Board is often different than what is important to the inmate or his family.

7.     Include quality pictures.  They say a picture tells a thousand words.  I agree.  Choose wisely, so as not to overdo it in the photo department.  Just like support letters, I rarely see the point of putting 20 or 30 pictures in a packet.  However, I believe it is usually a mistake not to include some pictures.  Good judgment is key here.

8.     Inmate Letters are important.  The Board will likely want to see how the inmate expresses himself and what he wants the Board to know.  Here again, less is more.  It is usually foolish for an offender to write a 7 page hand written letter that is poorly organized.

The focus needs to be on quality, not necessarily quantity.  A well written, well organized, and informative packet is needed if one expects the Board to take the time to carefully look through it and take away anything of value from it.

I hope this blog post is helpful to anyone who is thinking about putting a parole packet together.  Obviously, my legal representation is so much more than a parole packet, and this blog is not meant to be legal advice in anyone’s particular situation. Nonetheless, a parole packet is generally part of the process, and everyone, not just those who have an attorney, ought to understand how a quality packet may help an inmate, as opposed to one that will have no effect, or may even hurt one’s chances to make it home.

 

The Pamela Freeman Debacle As I Understand It

Just over a week ago, the Walker County District Attorney secured an indictment against Parole Commissioner Pamela Freeman on one count of tampering with governmental record.  Her offense has been classified as a third degree felony.  She has since been arrested and released on bond.  I have decided to write this blog post in order to provide my insights and perspective about this matter.  I have received numerous media inquiries and interview requests in the time since the indictment, and I have mixed feelings about discussing this matter with members of the media.  I have also received calls and emails from family members of some of my clients who are incarcerated in prisons within the Huntsville Region of the Texas Board of Pardons and Paroles.

It is hoped that this blog post will help to clarify my perspective on this unfortunate mess. My small cadre of blog readers, and many others, have a legitimate desire to remain well informed about this latest development and the effect it may have at the Board of Pardons and Paroles.

I should begin by saying that I have always had tremendous respect for the people who are entrusted to vote cases at the Board, with the exception of Ms. Freeman.  Similarly, the staff who work with the voters are all professional, dedicated public servants.   Before I address my opinions about Ms. Freeman and what is now happening, I want to emphasize that the Board performs a very difficult job with very limited resources allocated to their budget, and they do the very best that they can.  Other than Ms. Freeman, I have always believed that all of the other voters, including all of the Board Members and Parole Commissioners, are genuinely interested in making wise decisions about prisoners that are consistent with the Board’s mission, its policies, and the needs of the people of the state of Texas.  My opinion is that none of the other people who work hard at the Board should be maligned or suspected of being the type of person who would do the kind of things Ms. Freeman is alleged to have done.  That point cannot be lost in all of the fallout or public reaction that will surely follow the Pamela Freeman debacle.

With the recent addition of the Austin Board Office, the Board presently consists of seven Board Offices, with 14 Parole Commissioners and 7  Board Members.  There is presently a vacancy in one Board Member slot; the slot recently vacated by the Board Member in Huntsville, Roman Chavez.  Board Member Chavez  was constructively discharged (my interpretation) by Board Chair Rissie Owens the day before the indictment of Pamela Freeman.  The official version is that Ms. Owens merely made a decision to transfer Mr. Chavez to the Austin Board Office.  Another way to view the situation is that Ms. Owens knew Mr. Chavez would not uproot his family and move to Austin.  Although this management decision by Ms. Owens is certainly worth further scrutiny, it must be clarified that Mr. Chavez is NOT, and has never been suspected of doing the things for which Ms. Freeman is indicted, and neither is Ms. Owens for that matter.

In fact, Mr. Chavez seems to have done whatever he could to try to hold Ms. Freeman accountable once he concluded that Ms. Freeman had engaged in unethical and illegal acts while she was supposed to be carrying out her job responsibilities on April 30.

As a preliminary matter, it should be known that the Board’s voters almost never interview inmates who have been incarcerated for less than 20 years.  While this is extremely unfortunate, it is the inevitable consequence of having a Parole Board with so few people to vote cases in comparison to the enormous number of inmates who are to be reviewed for parole every year.  However, the Board does have a policy that requires a voter to interview all inmates who have been incarcerated for more than 20 years.  On April 30, 2014, Ms. Freeman was sent to the Wynne Unit in Huntsville for the purpose of interviewing inmates who had passed the 20 year point.  It is not clear to me if there were five or six interviews that Ms. Freeman was supposed to conduct on that particular day, but it is clear that there were at least five such interviews.

 April 30, 2014

All interviews with inmates are requested and approved through the Warden’s office, and a “lay in” slip is ordinarily given to the inmate the night before the interview.  This process was followed in the case of the April 30 scheduled interviews at the Wynne Unit.  However, the inmates did not know who would be conducting the interview prior to the scheduled time.  The inmates dutifully came to the area adjacent to the Institutional Parole Office on the morning of April 30, prior to the 11am time listed on their lay in slips.  They sat together and briefly spoke about the purpose of their lay ins.  As anyone, except perhaps Ms. Freeman, can imagine, nearly all prisoners who have been incarcerated for 20 plus years are extremely eager to finally get an opportunity to sit and talk to a person who literally holds the keys to the prison in their hands.

A little while after the men came into the room adjoining the Parole Office Wynne, one of them looked through the glass of the door to the room they were in and saw Ms. Freeman. He recognized Freeman because he had seen her several years earlier.  He promptly informed the other men that Ms. Freeman was going to be the person who would perform the interviews.

What happened next is very troubling.  It was 11am, and the interviews were supposed to begin.  A moment later, Ms. Freeman packed up her things and left.  She did not say one word to any of the men who were waiting to be interviewed.  In fact, she was never even in the same room with any of the men.  The personnel at the prison did nothing to discourage or prevent Ms. Freeman from doing her job that day. In fact, the opposite is true. Nonetheless, Ms. Freeman left without any obvious excuse or justification.

At least a couple of the men saw Ms. Freeman walk right past the glass window to the room’s door on her way out. The men were confused at first, but they stayed and waited to be told what was going on.  A few moments later, they were informed that the interviews were not going to happen on that day afterall.  At least one of the men asked when the interviews would be re-scheduled, and TDCJ Parole personnel told the men that it was unknown when the interviews would occur.  Then, the men were all excused and sent off to go back to their normal daily routines.

 How The Lie Became A Crime

A little later in the day, Ms. Freeman told others at the Huntsville Board Office, including Board Member Chavez, that the men had refused to be interviewed.  All five men.  Men with very long sentences who had waited twenty plus years to get a chance to meet and speak to the person most able to free them from their prison cells.  Yeah, she actually claimed that these men had all blown off their interview opportunities.  She tried to make her insane allegation more believable by claiming that the reason behind the refusal was that the men had chosen to eat fried chicken in the prison cafeteria instead of being interviewed.  All of them.

After the absurd fried chicken claim, Ms. Freeman documented the alleged refusals of the men to be interviewed in official records and in the computer system. Aside from her own false claim, she also knew that the other voter(s) would rely upon the false information during their decision making process.

One of the men at Wynne who had been waiting to be interviewed happened to be represented by attorney Mary Samaan, an experienced parole attorney from Houston. Ms. Samaan was quickly made aware that her client had not been interviewed, but she initially had no idea why the interview had not taken place.  She contacted the Huntsville Board Office and soon learned that Ms. Freeman was claiming that her client had refused the interview.  Ms. Samann knew this was a preposterous claim, and did what she could to make Ms. Freeman understand that her client had been waiting to be interviewed and had not refused the interview.

Ms. Freeman did not enjoy being challenged by Ms. Samaan, and in typical Pam Freeman fashion, Ms. Freeman became angry and belligerent.  It is my understanding that parole personnel from Wynne also challenged Ms. Freeman’s claims as soon as these claims were known by them.  To no avail.  Ms. Freeman had lied, and rather than apologize or even claim that she had simply been wrong, she maintained her ridiculous factual allegations.  To this day, to my knowledge, she has never admitted that she lied.

All of the men at Wynne who had supposedly refused the interview by Parole Commissioner Freeman were denied parole.

Ms. Samaan spoke with me about what had happened in the days immediately following the unethical behavior of Ms. Freeman,  I was a civil litigator during my first 8 years as an attorney.  Ms. Samaan and I discussed whether Ms. Freeman could be sued, and if so, what the cause of action might look like.  I offered to help her client, but I first needed to thoroughly interview him, which I did as soon as I was going to be in the Huntsville area again.

After confirming, to my complete satisfaction, that Ms. Freeman had committed a few possible crimes and may well have ruined several men’s long awaited opportunity to put the prison life behind them forever, I sat and pondered what to do next.  Ultimately, I decided to wait a month or longer to see if the Board would take any action against Ms. Freeman.  Nothing seemed to happen.  Finally, I decided to hold off on a lawsuit against the Board of Pardons and Paroles, and we opted instead to make other public officials outside of TDCJ aware of Ms. Freeman’s unconscionable and illegal actions.  Around the end of June, I chose to lay out the entire matter, to the best of my ability,as I understood it, to Texas Senator John Whitmire and the Office of the Inspector General (OIG)..

I will assume the OIG conducted a thorough investigation, and I should add that I have not seen any of the results of this investigation nor spoken to anyone with OIG about this matter.  However, I think it’s safe to assume the OIG discovered even more than I have outlined in this blog.  I also later learned that Mr. Chavez had, at some point, brought the Freeman debacle to the attention of OIG officials.  I do not know when, or how Mr. Chavez classified the Pamela Freeman actions of April 30, but I assume he will be one of the witnesses called by the attorneys at trial, in the event she is crazy enough to take her case to trial.

It’s my understanding that Ms. Freeman was finally suspended after she was indicted. However, she is still collecting a paycheck.  Lord only knows how that is possible, especially given a pile of other complaints that were made by many different people in recent years. One thing that deeply troubles me is that Ms. Freeman may have falsely claimed that other inmates refused to be interviewed on other occasions.  If anyone believes this type of thing may have happened to other inmates in the past, I will be happy to assist in the process of seeking the truth and correcting such a terrible wrong.

I want to acknowledge how grateful I am to Senator Whitmire and the OIG, for treating this matter as the serious and terrible thing it really is.  I am also impressed that the Walker County District Attorney has chosen to prosecute Ms. Freeman.  I hope that this whole mess will somehow teach us all some valuable lessons about how important it is to treat the inmates with dignity and respect and perform the duties of the Parole Board properly.  After personally experiencing some pretty horrible behaviors and actions perpetrated by Ms. Freeman in the past, I am quite relieved and encouraged that she has finally lost her ability to do any more damage.

A final note: It is my understanding that the men who Ms. Freeman claimed refused the interview have all had their parole files pulled, and were recently interviewed.  Their parole decisions have not been released yet, but as I said in my complaint, the point of this whole thing is not whether any of these men would have made parole if Freeman hadn’t behaved in such an outrageous and deplorable manner.  The integrity of the Board and its personnel must be preserved,  and unethical or illegal conduct cannot be allowed to go unpunished if we are to have faith in the Board going forward.

Why All The Secrecy? What Do Those Parole Board Files Have In Them?

“The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”
Patrick Henry

When I meet prospective client in prison, many of them simply assume I will be given a copy of all documents that the Parole Board will have in their file when reviewing the inmate for parole.  This is a logical assumption.  Unfortunately, it is also incorrect.

The Texas Parole Board will not release a single document from its parole file to any offender or his attorney.  Ever.  This has always astounded me, from the day I worked on my first parole file all the way through today.  Secrecy on the part of governmental entities, except in the case of national security concerns, is never a good thing.

The purported reason why nothing gets released is to maintain the integrity of the Parole Board’s internal procedures.  This explanation does not overcome the very real need for the inmate and his attorney to verify that the information relied upon by the board is accurate and complete.  The courts have consistently held that one does not have a constitutional right to make parole.  However, there is still a very real need to make sure that the integrity of the Board, and the process used, is not compromised.

If the goal is to make the best decisions possible about who should be given parole and who must be denied, the more complete and accurate the information is within the offenders’ files, the more information that is vetted and confirmed, the better.  Therefore, unless the people of the state of Texas are ready to blindly trust these extremely important parole decisions to a secret body that is managed in secret, the change must come.

There is a scandal brewing right now over the indictment of Pamela Freeman, the Huntsville Parole Commissioner.  I will provide some insights into that whole mess in a separate blog post in the near future.  However, for now, suffice it to say that Ms. Freeman would likely never have even dared to place false information into the offenders’ files if she knew that that same information could be reviewed by the offenders and/or their attorneys.  It’s just that simple.

Perhaps John F. Kennedy said it best…

“The very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings.”
John Fitzgerald Kennedy