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
- 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…