Monthly Archives: January 2017

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.