Hell Hath No Fury….

I interview all of my clients.  During these interviews, I must try to gain an accurate picture of the many details that led up to their incarceration.  That’s actually one of the most essential duties I have as a parole lawyer.  Sometimes, the path to prison is a relatively simple explanation. In other cases, it can be very complicated and multifaceted.   Unfortunately, I have seen many cases in which the person incarcerated is sitting in prison partially, or in some cases, completely as a direct result of the affirmative steps taken by an angry partner, spouse, or ex spouse.

It’s a well known fact that approximately 90% of all Texas prisoners are male.  Although I frequently have female clients, over 80% of my clients are male. During inmate interviews, I get to hear many relationship horror stories where a guy went off to prison in large part because his angry girlfriend, wife, or ex-wife made sure of it.  Hence, the title of this post.

There are many variations of the story, but I seem to hear a few common themes.  Here are the most common, in no particular order.

Scenario #1

The guy who is on probation and is doing stuff that, if known by the probation officer, might result in a revocation of said probation.  This guy has a girlfriend or spouse who, despite his illegal or improper behavior, chooses to stick around and capitalize on the situation by using the guy’s probation as leverage to gain the upper hand in the relationship.  She thinks that he will do whatever she wants him to do, because if he doesn’t, she’ll make sure the probation officer or the police are given all the information needed to arrest the man she purports to care so much about.

The power imbalance in the relationship from the above blackmail breeds an enormous amount of resentment in the guy.  Eventually, he stops taking her threats seriously or he just doesn’t do as he is ordered, and as she sees her power slipping away, she finally makes good on her threats and brings him down.

Scenario #2

A man is on probation and he is not doing stuff that would result in the revocation of his probation.  Nonetheless, his status as a probationee still makes him vulnerable to a partner with a dark side.  When he fails to obey such a woman or live up to her expectations, she makes up a story or gets him arrested for allegedly making deadly threats or allegedly striking her.  This woman may have to work a little harder to get her man locked up, but she finds a way.    

Scenario #3

A man on probation complies with his probation, but he cheats on his partner.  She places drugs in his car or pockets and calls the police.  He’s going down for sure.

Scenario #4

A man is involved in an unhealthy relationship.  He and his partner abuse drugs or alcohol, or both.  During a late night fight over something stupid, they are both intoxicated, and he ends up hitting or pushing her. Often, he was struck first, but that rarely matters to the police, who are summoned by either the woman or the angry neighbors.  The police see that he has a record, ergo, he’s going to jail.  Then, regardless of whether she even wants to see him prosecuted, he’s prosecuted.  Prosecutors love to grab at the lowest hanging fruit. Nothing is easier than seeking convictions against a person with a prior criminal history.

Anyone on probation or parole would be wise to choose their partner very carefully.  The potential for incarceration is never far away when a man’s partner has the potential to drastically undermine his future so easily.

 

The Lesson The Parole World Can Learn From A Race Car Driver’s Death

Recently, a 20 year old race car driver named Kevin Ward, Jr., died following a tragic accident on a dirt racing track in upstate New York.

Ordinarily, such an event, though tragic, would not be expected to garner much media attention. However, the details and aftermath of this particular accident have been the subject of a firestorm of news reports and much speculation and discussion.  The reason for all this attention is quite simple… Ward, the relatively unknown 20 year old driver died shortly after he was struck by the right rear portion of a passing sprint car, but that passing car happened to be driven by a man named Tony Stewart.

Unless you have made it a point to ignore anything and everything related to race cars for the past 20 years, you should know that Mr. Stewart is one of the most famous and wealthy race car drivers on the planet.  Yes, this accident on a local dirt oval track in upstate New York involved the Tony Stewart.

Despite all the exhaustive coverage this accident has received, the police and investigators, so far anyway, have not charged Mr. Stewart with a crime.  I do not think he will be charged either, but we shall see.

Many who follow racing know that Tony Stewart is legendary in the racing world for being aggressive and hot tempered, particularly when he was a younger driver trying to move up the ranks and make a name for himself. My first reaction to the initial reports was that the young man who died had likely either been the sole cause of his own death, albeit unintentionally, or at the very least, his actions had greatly contributed to his death.  Now that I have watched the video of the accident on YouTube several times now,  I am pretty convinced that my first reaction is, in fact, likely the proper conclusion.

I realize that we do not have all the information and investigative evidence, but I have seen enough thus far to know that this deceased young man did some incredibly dangerous and stupid things in the seconds before he was struck by the passing race car.  As you read this, perhaps you are wondering why a Texas Parole Attorney, who is not even much more than a casual racing fan, at best, would bother to blog about a racing accident that would seem to have absolutely nothing whatsoever to do with Texas parole, prison, or even much if any connection to crime, for that matter.

There is, however, a very real connection between the death of Kevin Ward, Jr., and many, many people who are sitting in prisons, in Texas, and elsewhere.  You see, the reason I immediately suspected that Kevin Ward had died because of his own behavior, even before I had received very much information at all, is really quite simple.

1. The initial reports said that in the moments before his death, the 20 year old Ward was racing side by side with Stewart on the outside “lane” of the dirt track and had spun out after Stewart’s sprint car had slid and bumped into Ward’s.

2. After Ward spun out, he climbed out of his car and stormed down from the relative safety of the area where his car was located, and into the area where the drivers were still racing their cars at over 100 miles per hour.

3. Ward was waving his arm in in an aggressive manner, pointing at Stewart and indicating that he wanted to immediately “confront” Stewart, who was  still racing, because he likely perceived the contact with Stewart was caused by Stewart’s own (well known) driving style and aggressive racing.

4. Ward was a 20 year old (testosterone filled) male, in an angry, highly emotional state.

Perhaps that last reason is the one which immediately made me think of all the prisoners I’ve met over the years.  Many of the most tragic cases involved boys and very young men, 16, 17 , 18, maybe 20 years old.  Most were in highly charged, emotional circumstances, and some had a mix of alcohol and/or drugs in their bodies, which further diminishes the very real struggle to maintain one’s rational thought processes under stress filled situations.

When I have interviewed such men in the calm and cordial atmosphere of an attorney visitation booth, I am almost always struck by how friendly, and sometimes, dare I say it, gentle, some of these men seem, especially the ones who are now 5 or 10 years older than they were when some terrible thing happened.

You see, when we all step back and look at things through the lens of reflection and hindsight, these tragic crimes that occur with little or no forethought, and with emotions running high, seem, well, crazy.  And yet, the actors themselves are usually not, and never have been deemed crazy or even very malicious people.

Kevin Ward, Jr. was probably a nice guy.  He was also 20, and in the heat of the moment, when he became angry that the legendary racer Tony Stewart, who races sprint cars solely as a hobby, had caused him to wreck, he acted in a tragically foolish manner.

It’s really frustrating that more people do not see that much of the most tragic and senseless crime that occurs is not the result of “bad people”.  Instead, it is the result of a bad combination of factors, one of which is almost always a young man who, at least on one occasion, did not  think clearly.

In my opinion, Kevin Ward’s death occurred for very much the same kind of thing that causes many, many young men to be sent off to prison and labeled as a “danger to society”. The immature, testosterone filled male brain will always be with us, and therefore, brief violent criminal episodes will likely never leave us, no matter how many people we lock up. Our best hope is probably to undertake a dedicated campaign to help young men understand how their own brains can so badly betray their own best interests.  We need only look to our prisons for thousands of examples of such betrayals and the devastating consequences for everyone.  The parents of Kevin Ward, Jr. need only watch the video on YouTube to see how their son’s young brain betrayed him.

Understanding The Meaning of “Parole Eligible”

I have met many, many inmates who, while facing criminal charges, accepted a plea agreement on the advice of their attorneys, rather than fight the charges against them. Often, this is very prudent advice, especially where the agreed upon length of the sentence is for a period of years that is reasonable, or even generous, under the circumstances. However, all too often, people are deceived into believing that they will be back home on parole very quickly.  When such promises are made to induce a person to plead guilty and end the fight, the accused (and his/her family) later discover a cruel reality; being eligible for parole has absolutely nothing to do with whether one actually makes parole.

The words “Parole Eligible” or “Eligible for Parole” should never be seen as the date that a person is going to be released on parole.  In fact, it’s far more complicated than what a person accused of a crime is told when deciding whether to accept a plea agreement.

Although there are many, many reasons one might not make parole, I see three general themes that tend to account for the reason(s) why well over half of the people who are initially eligible for parole do not tend to make it on their first try.

First, there are the cases where the offender has been in trouble outside of prison many times over a period of many years, and therefore may be seen to have squandered past opportunities and breaks that were bestowed upon them.

The second major category of inmates who are denied parole on their first opportunity are those who have had either serious major disciplinary cases in prison within the previous few years, or have simply had too many minor cases in the recent past.  These people are seen by the Board as either not being worthy of the parole privilege because, as the theory goes, if a person breaks the rules and gets in trouble in prison, the liklihood is even higher that this person will break rules and get in trouble in the free world.

Another category of offender who will generally not make parole on the initial eligibility date are those people for whom the offense(s) are particularly serious, and may also involve loss of life or serious injuries, and/or victim protests.

I hope this informs you a little better about why the prosecutors or defense lawyers at the courthouse really have no idea at all whether a specific inmate will make parole, or even when this might take place.

None of the three above general scenarios should be taken as being an absolute bar to making parole. However, it is definitely a more difficult path if one or more of the scenarios above is present.

I believe that the inmate-attorney interview is the best place and time for me to start thinking of all the details that might sway the voters to parole any given client.  Therefore, while gathering information, I am often looking for clues and insights that might make any given client a stronger candidate for parole, regardless of whether it is the first parole review date, or any date thereafter.

“But You’re Not a Dallas Parole Attorney”

I recently received an email from a lady from the Plano, Texas area.  Plano is a suburban area north of Dallas.  Her son is incarcerated in TDCJ, at a prison facility located about 20 or 30 miles southeast of Austin.  In her email, she brought up a point I have always wanted to address in a blog post.

The lady who emailed me seemed very intelligent, and she was definitely a detail oriented person, which is almost always a good thing.  She explained that her son was given my name by one of my former clients who had already made parole, and was now awaiting the much awaited release.  She expressed genuine interest in hiring me to represent her son. However, she also expressed a very sincere concern that I wasn’t a “Dallas Parole Attorney”.

When I called her, we spoke about her son’s current situation, and I explained the basic steps we would need to take in order for me to represent her son.  In addition to sending him a detailed questionnaire to fill out, I told her I would also need to schedule and conduct an interview with him at his prison unit after the completed questionnaire was received by my office.  She decided that neither she nor her son would want to make the important decision about who would be best equipped to represent her son until after her son had the opportunity to meet whoever was being considered.  She then told me that she had just assumed all parole lawyers would want to collect their fee for representing someone before ever being willing to open a case file and then make the trip to go out to a far away prison.

She was happy to learn that, at my office, there was no upfront costs or obligations,  except for an interview fee of $285.  This fee is simply to help cover some of my time and travel costs associated with opening a prospective client file, reviewing the questionnaire and any related paperwork we had received, and then scheduling a trip to go travel to (and from) her son’s prison for the interview.

Only after our interview had concluded would she and her son be making any sort of final decision about whether I was the right person to represent him before the Texas Board of Pardons and Paroles.  As we were about to end our call, she thanked me for calling her back and discussing her son’s situation with her.  I then asked her why she had previously indicated via email that her son’s legal needs would be best served by having a Dallas parole lawyer.  Here’s what she told me…

Since she was in the Dallas area, and since her son’s conviction occurred in the Dallas area, she had just assumed that the person best suited to help her son would be one of the parole attorneys in Dallas.  Here’s why her assumption didn’t make sense to me.

First and foremost, unlike the court proceedings, her son’s parole consideration will not be made in Dallas.  In his case, based on where he is presently incarcerated, the Austin Board Office would review his file and officials there will make the parole determination.

Second, I firmly believe that a parole attorney cannot usually have the best opportunity to effectively advocate to the Parole Board officials if that attorney has never interviewed the client.  The client is the person sitting in prison.  Therefore, since the client cannot come to the parole lawyer’s office, the lawyer must be willing to go to the prison. Accordingly, the location of the parole lawyers office is far less important than whether the lawyer is willing to get in his/her car and go to the client.  After all, it is the lawyer who is responsible for knowing all the critical questions to ask, especially the follow up questions arising from the answers to all the prior questions.  In my experience, that job is not one a lawyer should ever delegate to someone else.

Third, I honestly don’t know of a single qualified parole attorney in Dallas.  I am quite sure there are a few excellent attorneys in Dallas who have handled the occasional parole case, but through all of my inquiries over the years, I have not been made aware of any true parole attorneys in Dallas, i.e. those who limit their practice to handling parole cases only. Instead, the few names I have been made aware of in the Dallas area are lawyers whose practice and expertise is first and foremost centered around being a criminal defense attorney at the courthouses in the metropolitan area and the surrounding counties.  To me, this is an extremely important point.  Over time, I have regularly traveled to nearly all of the prisons in TDCJ, and I have represented hundreds of clients in the state’s seven Parole Board offices.  During these years of specialized practice, unique experience and familiarity with the many subtle nuances has emerged.  Even the slight differences in the way different prisons or Board Offices and their personnel handle certain situations can become important.

Similarly, any intelligent lawyer who is down at the courthouse almost every morning in connection with criminal cases will develop a keen awareness of many little details of the process that other attorneys simply do not recognize until they too are putting in the daily commitment of time and effort associated with this specialized type of work.

The one unspoken reason that I think this lady from Plano wanted to seek out a parole attorney in Dallas was that she wanted to meet him or her in person.  This feeling is not only entirely understandable, it is also prudent.  It just feels better to meet someone and sit with them in a face to face meeting, despite how easy it is to speak on the phone. There’s a comfort factor there that is undeniable.  Because of this, I am presently making arrangements with a good friend of mine from back in law school who has an office in Dallas.  He has graciously agreed to allow me to use either one of his two law office conference rooms anytime I need to schedule a meeting with someone, as long as the meeting is scheduled sufficiently in advance so that we do not double book either one of his conference room spaces.

I will someday look to do the same thing in Houston, and I am also exploring the possibility of having a video conferencing link with such facilities in both cities, in order to accommodate those who want a quicker face to face meeting with me while trying to seek out a parole attorney.  However, in the end, the most important face to face meeting is, and always will be, the one that occurs between a parole attorney and his client sitting in prison.

Who Are Those “Sex Offenders” and Why Should You Care?

When you read or hear someone say the two chilling words “sex offender”, the dark images that immediately come to mind for most people are those of deeply disturbed and dangerous rapists and pedophiles who, driven by sick and poorly controlled urges, seek to do unspeakable things to innocent women and little children.

Make no mistake, there are such people in the world, and the crimes committed by these people can be horrible, evil, depraved acts that can devastate their victims and their victims’ loved ones. One need only think of the excellent movie “A Time To Kill” (based on the John Grisham novel), starring Matthew McConaughey and Samuel L. Jackson, in order to understand the kind of crimes that come to mind when one thinks of the word “sex offender”.

However, no matter how many times you turn on your tv and observe someone like Nancy Grace getting on her ratings-driven soapbox, peddling out for eager public consumption the very worst of the worst crimes perpetrated across the country, people rarely seem to recognize that the crime stories used by Ms. Grace and those like her have been carefully selected from the thousands and thousands of cases out there, specifically for their shock value.  If it elicits a deep emotional reaction (rage, disgust, fear, distrust of government), it gets on the show, and it gets written about in popular media, and it gets circulated throughout social media.  Naturally, some people start thinking that there’s a pedophile on every street corner, just looking to snatch your kid away and drive off with him/her in the back of his beat up van.

After years and years of seeing and hearing about the shocking and depraved acts showcased by Nancy Grace and her ilk, popular opinion begins to shift, and the shift then encourages lawmakers to pass strict laws to show the public how harshly these crimes will be dealt with in their states.  However, despite the noble and righteous intent behind such laws, the devil can usually be found lurking in the details.

For example, in Texas, if an immature, socially awkward 20 or 21 year old male, who has never really had much in common with girls his own age, hangs around with people younger and more on his own level intellectually and socially, a recipe for disaster is in the works, and nobody sees it coming.   Our hypothetical guy meets a girl at a party, and they like each other.  He’s not used to actually having a female give him the time of day, let alone be attracted to him.  Maybe he knows her age, maybe he doesn’t.  All he sees is a physically mature, sexually developed female liking him!  Maybe there is alcohol involved, maybe not.  Maybe she has years of sexual experience already, maybe not.  Nonetheless, at some point, they end up having sex, consensual sex.

Under Texas law, there is absolutely no distinction between the title of the crime that the above scenario involves and the crime committed by a pedophile who rapes a 5 year old.

No kidding!  Both crimes are called “Aggravated Sexual Assault of A Child”

Here’s the “logic” behind why such an absurd scenario exists…

STEP ONE:     Under Texas law, if you are under 17, you are defined as a “child”.

STEP TWO:  Under Texas law, a “child” cannot give consent to sex as we commonly understand the term, no matter what the facts may be, nor can such a child give consent to any other kind of sexual contact. No exceptions.

STEP THREE:  Under Texas law, penetration without “consent” equals “aggravated”.

So, by playing loosey goosey with the word “child” and “consent”, the legislature has created a scenario where two people are similarly stigmatized, for the rest of their lives.

The pedophile who rapes a child is properly labeled as a registered sex offender, for life. Such a pedophile is likely going to be in for a very long prison sentence and will experience difficulty making parole.  Meanwhile our awkward and immature 20 year old may be fortunate enough to get probation and avoid prison, depending on how hard the girl’s parents push the prosecutor, the quality of legal representation, the county in which this “horrible” thing occurred, among other factors.  However, this young man will now be branded as a registered sex offender for the rest of his life.  No exceptions.

I have seen the popular websites that display a map with red dots or other indicators of where all the registered sex offenders reside.  Such sites are very popular among parents of young children.  Unfortunately, one cannot tell from looking at these maps which of the red dots is a person who molested a young child, and which of these red dots involved conduct that is far less serious.  Moreover, even if the website has actually taken the time to list the title of the offense for which the person was convicted, it is virtually impossible to discern much else, because, as I have described above, the titles of the offenses can be inherently misleading.

As a parole lawyer in Texas, I have represented many men who went off to prison and then faced the struggle to make parole, all because of a past sexual attraction that resulted in the sort of thing that sexual attraction sometimes causes, with a person who may or may not have sought out the sexual encounter in the first place.  Sadly, such a man will carry a stigmatizing label for life, and every aspect of their future is affected, including housing, education, employment, relationship opportunities, etc.

I know that it’s asking too much of most people to keep an open mind when it comes to “sex offenders”, which is why the law MUST change in this important regard.

Thousands of people in Texas are given the stigmatizing label “sex offender” for life who are not pedophiles or rapists.

Yet, the media makes a lot of money off the fear of the public, and nothing stirs up a community’s fears quite like stories about rape and child molestation.  Unfortunately, we have a justice system in which broad definitions of sexual assaults allow for these crimes to come in so many different varieties.  Often, the end result, the label of “sex offender” becomes an enormous blanket of stigmatization that stays with every single person without any regard whatsover to reality.

Prosecutors know that a person who sits in a courtroom, in front of a jury, accused of a sex crime, any sex crime, will almost certainly be presumed guilty, not innocent.   In an important and noble effort to punish sexual deviants who prey upon children, Texas now has a system in place that inflicts brutal punishment on thousands of people each year who are not pedophiles and may not even have any abnormal or dangerous thoughts or feelings. Those brutal punishments, including all of the long term consequences of these convictions, are often so punitive that the person convicted suffers sentences that last a lifetime and exact a huge price on society in unintended and far-reaching ways.

Let’s start out with the first problem; what is a “child”  I ask this question because Texas law does not characterize “child” in a manner consistent with the way almost everyone understands the term “child molestation”.  A person is legally a child until his or her 17th birthday.  Unfortunately, in many home and social environments, teens over the age of 12 or 13 are already quite sexually active.  Moreover, many sexually active teens are not well supervised by parents; either because of a lack of parenting skill or dedication, the inability to be around the teens more often due to work responsibilities, or simply not caring enough to be a parent.  In far too many instances, these unsupervised teens are engaging in sexual activities, and when the person with whom they have sex is over 17, it becomes a recipe for disaster.

 

Are Texans More Evil, Ruthless, Savage, Deceitful, Amoral, Etc. Than Anywhere Else In The World?

I chose the title for this blog post for one very specific reason; most Texans I have known over the years are very proud to be from Texas, or at least proud that they “got here as fast as they could”, as the t-shirts and bumper stickers proclaim.  Accordingly, all of the proud Texans out there need to honestly ask themselves the question asked by the title of this post.

There is a simple reason I believe we all must ask the above question, including every single voter, every politician, every judge, every prosecutor, every probation officer, and even every single police officer who is out there looking to make another arrest and put another person in jail or prison…..

Either we have one of the very worst, evil, and depraved populations on the planet, living right here in the Lone Star State, or, we have perhaps the most punitive combination of laws, courts, DAs, and prison systems in the entire world.  I’m sure you can guess which of the two explanations seems more likely to me.

Yesterday’s post at the blog Grits For Breakfast helps to illuminate just how out of whack Texas’ criminal justice system really is.  The Grits post references a study done by The Prison Policy Institute that demonstrates how, if Texas were a nation, it would have the world’s fifth highest percentage of its citizens behind bars.  Moreover, the only four places that outpace Texas in imprisonment are not other countries around the globe.  Instead, they are our neighbors.  We need only look eastward, to Louisiana, Mississippi, and Georgia, or to the north, towards Oklahoma.  However, since Texas is a pretty big state, with approximately 30 million inhabitants, our prison population is, according to The Prison Policy Institute, bigger than the prison population of Louisiana, Mississippi, Georgia, and Oklahoma combined.

The introduction to the chart at The Prison Policy Institute, depicting the results of the study, pretty much sums up the logical conclusion of the study:

“The state of Louisiana is often called out for having the highest incarceration rate in the world. But in the global context, how far behind are the other 49 states, really? This report finds that the disturbing answer is “Not very far.”

What was so shocking to me wasn’t that Texas is among the most punitive places around. After all, the “tough on crime” politicians, district attorneys, and judges (all of whom are elected in political elections) love to show the voting public how much they will make those god-awful lawbreakers suffer, when given the chance.  Instead, what really stunned me about the study was the difference in the incarceration rates between the United States and the rest of the world. It’s jaw dropping, considering how so many of the people in our country like to believe in the moral superiority of the United States.

Here’s a link to the chart:

http://www.prisonpolicy.org/global/

As a Texas parole attorney, I’ve now met and interviewed close to one thousand inmates in the Texas prison system. All were convicted of felonies under Texas law.  One of the first things that I was really surprised to find when I first began interviewing inmates years ago was that most of the people I interviewed just seemed like pretty normal people who had made some bad choices, or in some cases, really bad choices.  True, some of these people and some of their bad choices had to be punished, no question about it.  Other situations honestly did not seem like situations where punishment of any sort seemed logical or appropriate.  Or, in those cases where some kind of penalty was appropriate, many of these cases called for simple fines or documented warnings.

Perhaps we need to re-think many of our basic definitions of what crime really is and how it ought to be punished.  Perhaps it is even more important that we stop ignoring that the politicians, prosecutors, and judges have such sweeping punishment powers.  It does not seem, unfortunately, that getting elected in popular elections mixes very well with insightful, informed leadership on how best to deal with improper behavior.  Being seen as “soft on crime” is a political risk no intelligent politician, including the politicians on the judicial benches of Texas, will ever take.

If no meaningful reforms are justified, as many claim, and people are going to continue believing that our current criminal justice system is fair, then one of the following two conclusions must be true;

1)   According to data taken from around the planet, Texans are, on average, more awful, more savage, more dangerous, more dishonest, etc. etc. than just about anywhere else.

OR

2) Texas (and too many other places in the “Land of the Free”) treats other people more awfully than just about anywhere else.

 

The Austin Parole Board Office Is Open For Business

For many years, the Texas Board of Pardons and Paroles has consisted of 6 Board Office locations in Texas; Amarillo, Angleton, Gatesville, Huntsville, Palestine, and San Antonio. A few months ago, a 7th Board Office was created, and Austin was the location selected. I have been meaning to blog about this development for a while now, and since I have now had the opportunity to advocate to the voters in Austin on a few occasions, I am finally in a little better position to write this post.

About 6 months ago, I had heard that the Board was going to add 2 new Parole Commissioners, but it was not completely clear at the time, from what I had heard anyway,whether these new commissioners would be based in one of the six existing Board Offices, essentially filling in for voters in all 6 offices during periods when a voter was on vacation or when the backlog of files warranted, or whether the Board would create a seventh Board Office.

In approximately March, I learned that the decision had been made to create the Austin Board Office of The Texas Board of Pardons and Paroles.  I quickly learned that the Board Member for that newly created office would be Rissie Owens, the Head of Parole Board, with the two parole commissioners assigned to work in the Austin office as Mr. Elvis Hightower and Mr. Troy Fox, two very experienced and knowledgeable existing Parole Commissioners from the Gatesville Board Office.  It made perfect sense to select Mr. Fox and Mr. Hightower, especially considering the numerous other duties Ms. Owens must perform on a regular basis.

In order for Mr. Fox and Mr. Hightower to move to the new Board office in Austin, the Board had to name two new Parole Commissioners and assign them to the Gatesville Board Office, and then quickly train them on a host of matters.  The Board named LeeAnn Eck-Massingill and Roel Tejada as the new commissioners in Gatesville, and they are now working under David Gutierrez, who has now been a Board Member for approximately five years.  I have already had the pleasure of speaking with Mr. Tejada on one ocassion, and I look forward to the opportunity to speak with Ms. Eck-Massingill in the near future.

Although the new Austin Parole office has a relatively small number of prison units assigned to it, it is my understanding that this office is also responsible for voting a certain class of cases that may be drawn from any of the other regions in the state.  Previously, voters from other places had to periodically travel to Austin in order to vote those cases. Based on what I have already observed, it can be safely assumed that the Austin Parole team is now in full gear and is staying quite busy.

Although the addition of a seventh board office was likely an administrative decision made to reduce travel costs and modestly reduce the workload for those voters who had to regularly travel, the hidden benefit to inmates and their families is the most exciting aspect of the change, because the addition of 2 more voters may just mean that overall, voters, at least in some places, may have slightly more time to spend looking at a parole file.  In my opinion,  that’s a very good thing indeed!  Now, if the Board could do something about Austin traffic…

I LOVE “Grits For Breakfast”

I love to read. I like to write. Although I happily compose written work every single day on behalf of clients and their families, writing is much more difficult and tedious than reading, which is why I am in such awe of the blog “Grits For Breakfast”.  Nearly every single day for the past 10 years, this blog with the unusual name has put out interesting and thought-provoking blog posts.  Each and every post generally contains at least a link or two to other primary or related sources.  I learned about it 5 or 6 years ago, and I have been reading it somewhat religiously ever since. It’s my favorite blog, bar none! I’m not ashamed to admit that my own blog is high school junior varsity basketball, and “Grits” is the NBA.

Grits is the work of one man, from what I can tell.  One very, very talented, intelligent, and dedicated man, Scott Henson.  I have never met Mr. Henson, and I wouldn’t know who he was if he was standing right in front of me, although I would love to meet him someday and tell him how indebted I am to him for giving me a free daily dose of Texas criminal justice news and information for years now.  Here’s what Mr. Henson says about his own blog:

Grits for Breakfast remains an uncompensated hobby: All opinions are my own unless otherwise specified. I also maintain a seldom-updated personal blog called Huevos Rancheros. I’ve maintained Grits independently from any group or party because I want it to be place to discuss ideas in all their nuance, not just a spokesblog for this or that organization. The problems facing the criminal justice system are enormous, and we need unfettered, creative thinking to identify solutions that can work for everybody and keep us safe and free. It’s my sincere hope that Grits contributes to that process in some small way.

I do not read every single post put out by Grits, and some days I have to go back and look at the posts of the past week because I have been so busy.  However, I find myself reading a pretty high percentage of the posts, and I feel a great deal of gratitude to Grits and Mr. Henson on a regular basis.

I encourage anyone who is passionate about improving our state’s criminal justice system to read Grits religiously, and, if you are in a position to do so, consider donating to this wonderful and free resource provided by Mr. Henson.

 

 

Restorative Justice: We Must Improve The Way We Deal With Crime

My practice necessitates spending a considerable amount of time thinking about incarceration. I think about what it accomplishes and what it does not. I’ve interviewed well over 800 prisoners convicted of one or more felonies. Sometimes, the sentences are short, a few years or so. Other times, the sentences are 20, 30, 40, or more years. Most of the time, I am left feeling that incarceration, particularly after the first couple of years, accomplishes almost nothing, and at enormous taxpayer expense. I have been studying a movement called “Restorative Justice”. In my opinion, it represents one o the most powerful and logical methods of promoting healing for the wrongdoer and the victim, and it has tremendous potential to enhance the important goals of rehabilitation and decreased recidivism.

Restorative Justice is almost a completely foreign concept to most prosecutors, police, judges, and prison officials.  Outside of academia, practically nobody in the United States knows or cares what restorative justice is.  And that is a shame.  Perhaps the most important group of people who need to understand and entertain the possibilities contained in this social movement are the politicians.  After all, they make the laws, and therefore, they are the ones who could most easily bring the benefits of restorative justice into the ineffective and over-priced justice system we currently have here in Texas and in the U.S.

 OK, so what am I talking about anyways? What is “restorative justice”?

Restorative Justice is an effort to transform the way we think of punishment for wrongful acts. This can apply to all wrongful acts, not just criminal acts.

When a crime or other bad act occurs, it effects victims, offenders, and interested bystanders; such as family members, employers, employees, friends, etc… It also has an effect on the community at large and tends to have a de-stabilizing effect. These bad acts can be seen as cracks in the foundation of our community, and they create needs and responsibilities for the direct participants of the act, as well as for the larger society in which the act occurred.

Restorative Justice is the same given to a variety of different practices, including apologies, restitution, acknowledgement of harm, as well as other efforts to promote and provide healing for all, and reintegration of offenders into their communities, with or without additional punishment.

Although restorative justice usually involves a trained facilitator who oversees direct communication between victims and offenders, there is also usually partial of full representation of the community interest at large. It is a formal setting in which informal, but critically important, communication is fostered.  The basic goal is the complete and sincere acknowledgement of fault by the offender, and restitution of some sort to the victim. The broader goal is the approval of the community that the resolution is also in the best interest of society as a whole.  The restitution to the victim usually includes the expression of genuine remorse and sincere apologies, which can be written, oral, or both. There is often a new understanding gained by both victims and offenders during this process, and there are often agreements made about future behaviors, including financial restitution, where ever possible and appropriate.

 The ideal of restorative justice involves achievement of the four “R’s”

Repair     Restore     Reconcile     Reintegrate

 Although we can trace the roots of restorative justice at least as far back as classic Greek, Arab, and Roman society, modern restorative justice came about as a response to failed criminal law models of retribution and rehabilitation.  In other words, a strictly punishment-based model for dealing with crime had proven completely ineffective at deterring future crime, and rehabilitation programs were only successful at times, but were wholly unsuccessful in all cases where the offender did not undergo the inner transformation needed to prevent future criminal behavior.

Any system we choose to employ must have, as its foundation, the goal of reducing or eliminating future criminal behavior, from the least serious to the most serious offenses.  Such a goal, if realized, creates a safer, more peaceful, less violent, and more harmonious society.

The history of criminal justice and punishment is one where the state has continuously gained more and more control over its citizens in the name of “safety”.  The costs to taxpayers have become so extreme that people are finally starting to ask the important questions about whether the money is really being spent the right way.

Restorative justice could even be effective as a hybrid to incarceration.  For example, if a crime is a 1st degree felony under Texas law, it calls for a punishment range of 5 to 99 years.  After the prosecution and defense attorney have their opportunity to consider the facts and legal issues, it might be very wise to place the offender in prison for 2 to 5 years, depending on the crime, and then ask that the restorative justice process be given the opportunity to take place.  After 2 to 5 years, a lot can happen.  People can grow up, wise up, admit to substance abuse issues, acknowledge right from wrong, humble themselves, and in many cases, they may have deep empathy and compassion for those that they have wronged.  Meanwhile, the victim may have finally developed the courage to forgive, acknowledge their own wrongful role, if any, in a given scenario, develop the will to heal and let go of past pain, and finally, move forward and live the best life possible.

One way to look at restorative justice is the visual below…

 

Justice, in its noblest form, must promote healing and reduce human suffering.  Thus, the question above is not just appropriate, but it is also essential.  The interests of the victim and the offender are placed on the right and left, and the interest of the community is placed on the top.  Yet, it is only where those interests can, through reason and informed discussion, overlap that we will ever find justice. Failing to find that overlap and work within it almost invariably creates an adversarial perspective, leaving at least some, or possibly all of the interested parties permanently feeling marginalized or ignored, and feeling as if the badly needed healing will never come.

 

Parole Protests Are Hurting The Legitimacy of The Entire Parole System

I have been representing prisoners before the Texas Board of Pardons and Paroles since 2007.  One complaint I have heard many, many times from inmates and their families is that some of the very best behaved “model” inmates are repeatedly denied parole, while some of the “knuckleheads” seem to get paroled very quickly.  I have also witnessed this phenomenon myself on many occasions.

Obviously, this type of complaint by inmates and their families about perceived unfairness in the parole process is a generalization, and it often completely fails to account for the true nature of the crime, the inmate’s own past failures above and beyond the major failure for which he/she is incarcerated, among other things. These complaints also fail to account for the list of static and dynamic variables that go into a parole guideline score.

This concern of perceived unfairness, however, becomes much more valid when you compare inmates who committed similar crimes and who have similar guideline scores, and who both demonstrate a great deal of positive transformation as a result of the valuable lessons learned in the years following the criminal behavior.  In these “apples to apples” scenarios, it is completely arbitrary that one person makes parole, and the other does not, especially if the person denied is repeatedly denied.  And the greater the difference in the length of the term of incarceration ultimately required of two such similarly situated inmates, the more arbitrary and unreliable the parole system as a whole becomes. Victim protests are, in my opinion, a huge part of the reason for such arbitrary and unbalanced results.  It is my opinion that the extreme reverence presently given to parole protests undermines the legitimacy of the entire parole system.

I have blogged before that a victim protest likely equates to a denial of one’s parole, period, with little or no exception, period.  I must qualify my firmly held belief by openly admitting that I cannot prove that this is what is happening, and there is a very good reason I cannot. Namely, the Texas Board of Pardons and Paroles strictly adheres to its policy of never revealing the existence (or non existence) of a protest on any particular file, in any given offender’s parole review.

Before anybody starts thinking that I have no sympathy for crime victims, let me first say that I am a compassionate person by nature, and I am always looking for ways to bring peace and serenity into my life and the lives of those with whom I come into contact in my daily life.  I do not like conflict or unkind behavior, and I loathe unnecessary human suffering.  Therefore, I am naturally sympathetic and I have genuine empathy towards anyone who suffers.  Some victims of crime are forced to endure unspeakable suffering because of the extreme and completely outrageous nature of the criminal behavior inflicted upon the victim and his/her family.

When a crime occurs in which innocent people are victimized unnecessarily, we all lose. But, generally speaking,  nobody loses more than the victim and the victim’s family.  Just because I see suffering of inmates and their families on a regular basis, it does not mean I am oblivious to the victim’s suffering.  The most obvious example of such suffering occurs when a person is murdered.  Yet, there are many, many other crimes that are less extreme that, nonetheless, cause a large amount of temporary or permanent suffering.

When you really stop and think about it though, a parole vote should have little or nothing to do with whether a victim is protesting a prisoner’s release from prison.  The decision whether to parole a person is supposed to be objective, made by a qualified group of people who can objectively consider the relevant information.  Objectivity.  That’s what we, as a society expect from any governmental decision-making body.  In fact, jurors in every civil and criminal trial in the state of Texas are expressly instructed by the judge not to let bias, sympathyor prejudice play any part in their deliberations in important matters such as guilt or innocence in a criminal case, or in determining the amount of damages to award a party that seeks money damages in a civil trial.  Yet, this objectivity is openly challenged at the courthouse by involving crime victims, which is quite common in this age of increasingly popular “victim’s rights” programs.  To allow victims of crime even more power by affording them future opportunities to negate the objectivity of the parole system makes the opinions and experience of parole officials seem completely irrelevant.

A protest by a person who still carries the anger and pain of a past crime is perhaps about the most subjective opinion one could possibly seek out concerning whether a particular inmate has a) been adequately punished for a given criminal act, and b) whether an inmate has been rehabilitated and demonstrates the requisite maturity and character to be trusted to re-enter society and live a crime free life.  In fact, most crime victims could care less about anything other than their own pain and their own desire to see the perceived wrongdoer punished. It stands to reason, therefore, that a crime victim is the least qualified person to be able to address whether an offender has been properly punished, and whether that same inmate has been rehabilitated.

If the entire justice system is premised on the notion that decisions must be made as objectively as possible, the first question we should all ask ourselves is whether the stated desire of a victim ought to play any role in the justice system.  Even if the answer to that question is “yes”, that we do, in fact, want to introduce the subjective will of crime victims into our society’s justice system, the second question that naturally follows is whether we want to place some reasonable limits on the will of the victim.  If there is to be a limit on the will of the victim, at what point must we stop looking to the victim for guidance as to what to do with a person who committed a crime in the past?

The above question is extremely important.  Another way to state the question is this:

When do we move beyond subjectivity (sadness, anger, hatred, desire for revenge) and seek to remain objective about the dual purposes (punishment and rehabilitation) in every criminal justice system?

There are really only three possible answers to this question.

The first possible answer is that we should  seek a system where the law punishes criminal behavior itself, without regard to anyone’s personal opinions, least of all the victim, who is almost certainly biased, and understandably so.

The next possible answer is that we allow the subjective will of a crime victim to play a limited role, but we set up a system where that subjective role, while allowed, is still subservient to the more objective will of those whose job it is to be as fair and objective as possible.

The third possible answer to the important question above is to set up a system where the objective decision making ability of judges, juries, and parole officials is pretty much disregarded, and the subjective will of crime victims is the basis for all important decisions. I’m afraid that the present way of handling crime and punishment in Texas is leaning more and more towards this third scenario.

Most crime results in victims.  This inappropriate victimization is precisely why many criminal statutes are enacted in the first place. So, when a person is arrested and is suspected of having committed a crime, a victim centered system dictates that we ought to go ask the crime victim what punishment ought to be imposed upon the person being charged with crime, without regard to anything else, and then we’ll keep asking the crime victim how he she feels into the future.

When an offender sits in prison, he or she is being punished.  However, while the punishment is underway, the long term goal is to always seek growth and rehabilitation, real positive change in the mindset of the offender.  Ultimately, we want to know that the offender has learned valuable lessons about life, about the terrible consequences of crime, and about the acceptable limits of human conduct, such that they will never commit crime after being released.  By having a system that uses the victim’s protest and ignores everything else, we rightfully have less trust and faith that the “system” is anything even resembling fair.

I doubt most members of the general public share my views about this topic.  Most people tend to focus on punishment, to the complete exclusion of rehabilitation.  Strangely, however, individuals always feel quite differently about the role of forgiveness and rehabilitation when it is their loved one sitting, suffering, in prison.  The lack of empathy on the part of those who have never seen a loved one suffering in prison is precisely why the popular “will” of the people is so easily manipulated by politicians, victims rights groups, and of course, the popular media, always for their own benefit, of course.

Perhaps a way of allowing the victim of crime to impact the prosecution and incarceration of an offender is to set reasonable limits.  For example, we could have a system where a criminal is sentenced, and then a victim’s input is allowed to be considered and this input could result in the addition of up to 10% onto the term of incarceration.  Similarly, when the prisoner becomes eligible for parole, we could allow the victim to protest the offender’s initial parole eligibility date, and the victim is given the satisfaction and the power to dictate that the perpetrator will remain in prison up to 2 additional years as a result of the victim’s will.  However, after that, the victim is barred from having any input into any subsequent parole eligibility opportunities.

The Parole Board is quite capable of seeing a serious offense for what it is, and the inmate who wishes to make parole is still going to have to overcome plenty of challenges in order to make parole.  It just seems completely absurd to me that we would ever have a system wherein we keep the prison door locked for as long as a crime victim thinks it ought to stay locked.  Yet, I am firmly convinced that this kind of absurd system is exactly what we have today in Texas.