Monthly Archives: March 2015

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

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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…