Taking the definition of deadly weapon to new extremes

It's no surprise that legal terms and phrases seldom mean what you would expect them to mean. Nowhere is that more apparent than in the definition of deadly weapon.The Texas Penal Code defines deadly weapon as anything that in it's manner of use or intended use is capable of causing death  or serious bodily injury. You don't have to to actually cause injury. Instead, the focus is on the intent, and the manner in which something is used. That all makes sense, until you see how the courts have applied it.

Over the years, the definition of deadly weapon has been expanded. Courts now hold that anything can be a deadly weapon. That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.

The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

When you think of deadly weapon, you envision something that is actually used to inflict injury. The dumpster in this case was not used to inflict injury. It was the act of abandoning the child that  caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

The reason why a deadly weapon finding is important is because it increases the time a person must serve before they're eligible for parole. In some cases it also increases the grade of the offense, so it is an important finding. If you want to punish some offenses more severely that's fine. But engaging in mental gymnastics and legal fiction is not the way to go. It's time to return some common sense to the legal system, and this would be a good place to start.

Changes in Expunction Law

Given the general stance of the legislature on criminal justice issues it might surprise you that they enacted some changes that are actually beneficial to those who have been caught up in the criminal justice system. One of those areas is Expunction, which addressses those situations where someone was arrested but the charges were either dismissed or never filed.

There have been problems in those situations where a person is arrested and charges are never filed. The courts have required individuals to wait until the statute of limitations expires before applying for an expunction. In cases where there is no statute of limitation - such as murder - you could never have your record cleared. There are also charges with lengthy statutes of limitation, such as most sexual assaults.

The legislature basically set up waiting periods: 180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors, and 3 years for felonies. The burden is on the applicant to prove that they were released, and that charges are no longer pending.

As you would imagine, the legislature is not going to tell the State to close their file and destroy all the records The order granting expunction must authorize the State to retain their records and files.

Another change is what can be termed a discretionary expunction. Previously, any agency listed in the petition could oppose it. DPS did that fairly regularly, which is why a lot of expunction cases have the Texas Department of Public Safety as a party. Under the new statute the prosecutor can agree to an expunction. Of course, a court must still sign the order, and might refuse to do so if there is opposition. This change could be significant in those cases where it is obvious no charges should  have been filed, and the individual should not be forced to wait.

One other change removes the restrictions on prior felonies. Previously an individual could not receive an expunction if they had been convicted of a felony within the previous 5 years. That has been removed.

There is no doubt these changes are positive, and are going to allow a significant number of individuals to obtain expunctions who otherwise could not do so, or would  have to wait for significant periods. If you are a lawyer, get ready for the questions; or even better, let your clients who qualify know they can now get some relief from the arrest that has been following them around.

Opening the Door on Pardons

We all make mistakes - especially when we are younger. Most of time you are able to learn from them and move on. Sometimes though the mistake may haunt you for the rest of your life. Criminal convictions fall into that category. Even though you may have been a model citizen for 30-40 years you are still labeled by your prior mistakes.

Over the last few years lawmakers have recognized how unfair that can be - probably because they knew people who were effected, including their own families. Several years ago Texas recognized a new procedure, where you could obtain an order sealing your record in some cases. The procedure is called "Non-Disclosure", and is limited to those cases where a person received deferred adjudication, and successfully completed it. While some doubt how effective that process is, it is certainly better than nothing.

Even if you receive a non-disclosure you still  have the case - the arrest itself while sealed, may still be a liability. Now there is new option for persons who successfully completed a deferred adjudication - a pardon. The legislature amended Art. 48.01 to allow persons who completed their probation to receive  a pardon from the governor.

To be eligible for a pardon you must wait 10 years after the date of discharge. That means you start counting when your supervision ends. The pardon application must be submitted to the Board of Pardons and Paroles, who will make the recommendation to the governor. For a checklist of how that operates - which has not been amended - you can go here.

I believe this a significant change, and one that is positive. The ability to obtain a pardon is close as you are going to get to clearing your record. Not surprisingly, I have heard the governor's office is expecting an avalanche of applications. I have no reason to believe they won't be seriously considered, since this was something supported by Governor Perry.

If you qualify, why not apply.

Passing the buck in death penalty review

I didn't consider it a big surprise that that the Georgia Board of Pardons and Paroles denied clemency for Troy Davis.I haven't reviewed the evidence, and I have no idea whether he is guilty or innocent. But I don't think that should be the point. If we are going to impose the ultimate punishment and execute someone shouldn't we be absolutely certain they are guilty? If there is any reasonable possibility that they aren't, the costs of making a mistake are simply to high.

I've said before that I believe we are all going to be judged on the decisions and choices we make. And I don't think you get a pass on something like this by claiming  "I was just following procedure(or the law)".  That is nothing more than passing the buck - in the end, no one is responsible. The jury can say we decided the case based on what was presented, the State can say we presented the evidence we had, and the courts can say we reviewed the record. Once the case is affirmed, the courts can fall back on the finding that the defendant has not met the legal burden the law requires. In the end, a case can go all the way through the process even though people have serious doubts about guilt of the defendant.

It's no secret that I don't support the death penalty. My beliefs are both practical and religious. They system in place is too prone to mistakes to impose the ultimate punishment - mistakes which we have seen over the last few years. That is coupled with a belief in the sanctity of life, and produces a pretty strong opinion. I realize others don't share my views, and that's fine. But I don't see how even the most hardened death penalty proponent can endorse executing anyone whose guilt is not absolutely certain.

I don't know any of the people involved, but I doubt few will lose any sleep over their decisions. Either they don't care, or they rationalize it away. Unfortunately, the review system provides plenty of ways to do that.

If we are going to have the death penalty, there should be final review aimed at answering the question whether there is an chance the defendant is guilty. If there is, don't execute them. Doing so only ensures that at some point a mistake will be made - a mistake that can never be undone.

The Hypocrisy of Victim's Rights

I was in court recently and observed a plea in a sexual assault case. The plea was for a low sentence - which is unusual. Before accepting it, the judge asked the prosecutor if the victim and their family had been consulted, and made sure they agreed with the recommendation. I'm not sure what would happen if they had not been, but obviously the judge wanted to make sure the victim was satisfied with the outcome.

 Others have written about this (you'll have to find them on your own), and have expressed the issues this raises far more eloquently than I can. All I can do is rant. The fact is, the criminal justice system is not in the business of making people happy. There certainly is no concern for defendants. Why should victims be any different. They have a personal interest in the case, and those closely connected anything are the worst persons to consult. There is no way they can be objective, and trying to cater to their interest is often impossible.

 What bothered me about this though is the hypocrisy in such concern. Perhaps the judge was truly concerned about the victim. Perhaps he simply wanted to appear concerned, since that is what judges are supposed to do. The fact is that judges and prosecutors are only concerned about victims when it fits their agenda. How many times have people been prosecuted over the objections of the victim. In this case what if the victim had been consulted and told the judge they didn't agree with what was happening – they thought the case should be dismissed. Do you think those concerns would have been honored?

The fact is prosecutors and judges have to run for election (at least in Texas). No one gets elected by catering to defendant's. Instead everyone wants to be as hard on criminals as possible. That system is designed to fail. Maybe I'm being overly cynical, and I concede the possibility. After all, judges and prosecutors do see terrible things every day - and terrible. It's easy to stereotype, and assume everyone is the same. Criminal defense lawyers are not immune from that. It's a struggle to evaluate each case, and each defendant, on their own, and not burden them with the misdeeds of others.

So what's the answer? I don't have it. But a good start would be doing away with the concept of "victim's rights" unless you truly want to apply it across the board.



Yes I know it's rude to type in all caps - but I want to make a point. One I've been trying to make for at least 20 years. There is not a week goes by that i don't get a letter from an inmate asking about time cuts. At first i thought it was just one of those rumors that circulate in prison. As the years rolled by though it became clear that it was something more than that.

Hope springs eternal - even in prison. When you pair hope with common sense, you get a creation that is immune to reality. It makes sense that if you can appeal, a court can consider everything - including the length of the sentence. It also makes sense to believe that there should be some way to reduce an excessive sentence. Sensible or not, there is no such authority.

So what are options? Basically there are no judicial options. The only option is commutation - which comes from the Governor. Despite what anyone may say, commutation is often a political decision. To obtain a commutation, you need to obtain the recommendation of at least two of the three trial officials - which are the judge, DA and sheriff. They have to agree that the sentence is excessive, and give a reason for that belief. Generally, it is something that comes out after the sentence was assessed.

So how many times would you expect the judge and DA will agree that a sentence is excessive? If you guessed almost never, you would be right. There are only a handful of commutations issued each year - and your chances of obtaining one are probably the equivalent of hitting the lottery.

The commutation process goes through the parole board, so if you want to pursue this option, you need a parole attorney. However, don't expect a good parole attorney to take your case without knowing a lot about it. They know it is the equivalent of hitting your head against the wall, and are not going to take a case unless they believe they is a realistic chance of success.

If your only complaint is that your sentence is too long, you are out of luck. The only legal remedy available is a writ of habeas corpus, and that is also extremely limited. It is only available to correct serious errors in a trial. And before you think that fits your case, that type of error also exists in only a  handful of cases.

If someone tells you to pursue a time cut - or that you can get a time - cut, you will now know that don't know what they are talking about. Spread the word.


Humiliation as punishment - who wouldn't take that?

As you would expect, everyone is commenting on the Master's report on Sharon Keller. Judge David Berchelman found that Judge Keller's conduct was not exemplary, but she doesn't need to be sanctioned because of the humiliation she has been subjected to. At firtst I thought someone was joking - but sure enough that's what he found.

Others have already covered the bases on this, and there is no reason to say the same thing. I do have a couple of observations thought. The first is that he makes an assumption that I'm not sure is correct - he assumes Judge Keller has been humilated. I haven't seen any indication that she has an regrets about what she did - if fact, she  has said she wouldn't change a thing (which Judge Berchelman's concludes can't be true). All she has done is attack everyone else. I always thought you at least had to feel some responsibility before you feel humiliated.

If you are a defense lawyer how many times have you made - or seen - this eame argument. My client is a good person who made a mistake, and has already been punished enough. It might be the executive caught with his hand in the till, or the young mother who takes a couple of pieces of jewelry. You know how often that is successful - try almost never. I'm sure Judge Berchelman has heard it thousand's of times - and probably this is this is the first time he has ever bought it. What's the difference between a judge and some other member of the society - doesn't that say something about how judges view themselves in relation to everyone else.

Judge Berchelman aslo says Judge Keller is not responsible for Michael Richards execution. To a certain extent that's true - he probably would have been executed anyway. But he wouldn't have been executed that day. Doesn't that tell you something else how judges view criminal defendants?

If God came down today and told you that technically today was your day, but he might be willing to give you a few more months, what you give for that opportunity? The problem with executions is that they terminate possibilities - we don't know what Michael Richards might have done with his extra time. Maybe he might have done something that impacted another and changed their life for their better. Instead, their life takes a different path. I've lived too long to not recognize the ripple effects we have on others - most of the time we never even know it.

Maybe the humiliation Judge Berchelman is referring to is the effect on the judiciary. There certainly could be some truth to that; but if that is what he was worried about he's made the problem worse.

As I said, others  have already covered all the bases on this. My contribution to the debate is to collect those comments here:

Jeff Gamso - Still Fly Free: the Judge Sharon Keller story cont.

Jamie Spencer - "Judge Keller's conduct was not however exemplary of a public servant"

R.J. McReady - Judge Keller should not be punished

Scott Benson - Judge on Sharon Keller - Public Humiliation is Punishment enough

Dallas Criminal Lawyer - Judge Keller = Not exemplary

Is there any doubt clemency is political decision ?

Several weeks ago Randall Thompson's future was probably looking pretty good. He was scheduled to be executed, but the parole board voted to recommend a commutation to life. In Texas that's a rare thing - I'm sure his lawyers had to look several times to make sure they were reading it right.  If you compare it to the lottery, he was told all his numbers matched. All he had to do was collect his money - in this case get the approval of the Governor.

The governor of course is Rick Perry - who just happens to be engaged in a heated primary election. Never thought to be soft on the death penalty, Gov. Perry had commuted sentences before based on the parole board recommendation. Too bad he didn't do it in this case - Mr. Thompson was executed after Gov. Perry refused to follow the recommendation.

I'm sure Gov. Perry has his reasons - just like he continues to insist Todd Willingham is guilty. I think the truth is that he didn't want a commutation to be an campaign ssue. His base of support is to put it mildly "off the chart" on criminal justice issues. They believe in more crimes, and tougher punishments. Heaven forbid you suggest someone shouldn't be executed - even if there are doubts about their guilt.

The bottom line is that if Mr. Thompson's execution had been scheduled a few months earlier he would probably be spending the rest of his life in prison - just like his co-defendant.

This was upsetting enough; then I had to read Mark Bennett's comments, which included a post by Mr. Thompson's habeas attorney. It appears that Mr. Thompson was the victim of an all too often situation - bad lawyering. Any doubt is dispelled by looking at what happened to his co-defendant, who was represented by a good lawyer. In short, the justice system failed him.

I've written before about my belief that we are all going to be accountable for our actions some day. Most of us have a lot of things we aren't proud of - and aren't going to get off the off the hook for. Imagine having to explain why you thought it was better to let someone be executed so you wouldn't damage your re-election chances.

There has to be a better way to handle death penalty cases. Whatever it is, it's not leaving decisions in the hands of those who worried more about their own future - i.e. politicians. They are always going to be decisions with political ramifications. Any doubt - look at the the heat coming down on Mike Huckabee for reducing the sentence of Randall Clemmons (who recently gunned down four police officers). When a decision like that goes bad, it's easy pickings for your opponents.

Politics should not enter into decisions on clemency and communation. In fact, the political ramifiactions of a decision have nothing to do with the meritts. Unfortunately, as long as politicians are the ones making those decisions, it will remain.

Are we safer by gathering up sex offenders on Halloween?

It's Halloween, which means probation offices across the country will be gathering up sex offenders and hosting a special kind of "party". I'm not sure who was first to come up with idea, but its clear that it caught on quickly. That's not surprising, since anything that punishes sex offenders is always going to popular. What is surprising is that it was not a reaction to an acual problem - merely a perceived problem.

The thinking goes that sex offenders will prey on children when they come to their house for trick or treating. I'm not aware of that ever happening, and I have a hard time understanding how it could. I'm reasonably sure most parents are like me, and took their kids trick or treating. Does anyone ever actually let their kid go iinside someone's house? If they did, would you let them stay more than 30 seconds? Of course you wouldn't - if there is ever a time when parents are watching over their children, its during halloween.

The reality is that most sexual offenses against chldren are not spontaneous and randon; in other words, they don't see a kid and molest them. That does happen occassionally, but its more common that sex offenders groom their victims over extended periods of time. It's also a sad fact that most sex offenses against children are committed by people they know, and have some relationship with - that's how they are able to keep it hidden.

Scott Greenfiled has a timely post on assumptions and common sense. As he points out,  most people make decisions on facts they assume - and not actually know. As we all recognize - most of the time reluctantly - assumptions are often not based on facts. I think this action is one of those assumptions that is not based on actual facts. Has a child ever been assaulted on Halloween by a sex offender?

We need to protect our children (and for me now grandchildren), but we need to do things that actually make them safer. I'm not convinced this does anything but create more work for probation officers. Wouldn't they rather be with their children, instead of baby sitting sex offenders.

Does rehabilation work?

Talk about rehabilitation and those "tough on crime" types label you a bleeding heart liberal. In thier view, rehabilation is not the primary goal of punishment. Instead, they want to send everyone away as long as possible. In thier view, lenghty prison sentences will deter others from committing similar crimes, and the offender will learn his lesson. Of course, the evidence over the 50 last years doesn't support that, but why let a little thing like logic get in the way.

The fact is, most people in prison are going to get out someday. Society has an interest in making sure they can make a succesful re-entry. Unfortunately, that reality is too often ignored. If you need evidence, you only need look where budgets are cut when times get tough - generally in rehabilitation services.

Some gains are being made, and Texas has started to see benefits from the push to come up with alternatives to revoking a person's probation. Other states are being forced to limit their prison populations.

All this is background for a story I recently came across that I found fascinating. Michael Eubanks spent 31 years in prison for capital murder, and was finally released on parole. Before his release, he participated in a pre-releas program based at a Christian prison in Sugarland. One of the courses was taught by former Harris County District Attorney Carol Vance. Never one to be described as soft on crime, Vance actually prosecuted Eubanks and tried to sentence him to death. You have to wonder what Eubanks thoughts when he walked in saw Vance.

The reaction was anything but expected. Eubanks said although at one time he hated Vance, he had come to admire him. As for Vance, he said he would trust Eubanks as a next door neighbor - huh! Maybe this rehabilation thing really can work.

Why are conservatives always "tough on crime"

One you can always count on: if you want to pass a law to lock up more people or for a longer period of time most conservatives are for it. Before I get too far, I don't fit the mold of many crminal defense lawyers. I would classify myself as conservative on a number of issues - most those dealing with moral issues. When it comes to social justice issues I come on the liberal side. Actually, you  can pretty well predict my opinion by checking the official position of the Catholic Church; but that's another issue.

Most conservatives are against big government, and favor individual freedom. What's the largest expansion of the government in the past 50 years - no doubt its the prison system. Especially in Texas, the prison system has continued ot expand. Until the last two sessions, legislators didn't meet without adding a few new prisons. The result is that we now incarcerate a substantial portion of our population; especially younger minorities.

Prisons cost money. No matter how much you cut costs, you still have to pay guards, utilities, and food. It costs a lot of money to run prisons; money that many states no longer have. We are seeing the aftermath of this expansion across the country; in California they were talking about closing down some of the prisons.

What's the alternative to locking people up? How about keeping people out, and making sure once they are out they stay out. It costs a lot less to rehabilitate someone than lock them up for years. It took a recession, but many legislators are finally recognizing this. Tha includes conservatives.

Maybe we are finally at the crossroads, and we are about to embark on a new course. Professor Berman has commented on this frequently. Most recently, he noted the comments of Attorney General Holder, which suggests a new approach to criminal justice issues. We can only hope that catches on among the politicians and the general public.

Those involved in the system know the tremendous costs imposed by incarceration; costs that are not just financial. The biggest cost may be to the families of those incarcerated. Think of all the positive benefits that would result from giving someone the skills they need to survive instead of locking them up. I'm not naive enough to believe we may no longer need prisons. There are people who can't, or refuse to live within the law, and there is no choice but to lock them up. However, that is a small percentage of those currently incarcerated.

My hope is that we start looking at the total costs of incarceration. When you do, the conservatives should the first in line to champion reform.

How sure should we be


Last week the court denied relief for Troy Davis. His case has bounced back and forth in the courts. Since his original conviction, he has obtained recantation's from several of the government's witnesses, as well as an admission from someone that they actually committed the offense. Needless to say, the litigation has focused on whether Davis is innocent or not.

The court affirmed the conviction and corresponding death sentence, by a vote of 2 to 1. As a result, there is a very real possibility that he will be executed even in light of evidence that at least raises questions about his guilt.

The legal system is not designed to judge shades of guilt or innocence. You are either guilty or not. In most cases that may be sufficient.Many people are willing to live with the possibility that guilt may not be firmly and clearly established (i.e. beyond all doubt as prosecutors are fond of reminding jurors). However, where death is involved, there should be an alternative approach.

No one can seriously argue at this point that juries never make mistakes. They do the best they can, with the evidence presented. In many cases there may be new evidence developed during the post-conviction process. What a jury would do with that is nothing more than a guess; a guess that's not being made by jurors, but instead by courts. In those cases, they are making life and death decisions, based entirely on what they THINK a jury would do.

Troy Davis's case represents the problem with establishing innocence. Once a jury finds a person guilty, a presumption of guilt is created. Overcoming that presumption is difficult, if not impossible to do. As in Davis's case, many times a defendant may obtain a recantation from a witness. While most people would think that's significant, courts look at recantations skeptically. Especially when it occurs long after the trial, courts place little faith in them. Seldom will someone obtain relief if all they have is a recantation.

Admissions of guilt are also looked at step typically, especially if the person can no longer be prosecuted for the offense. Recently, a defendant in Dallas was released after being exonerated through DNA evidence. Another person had claimed credit for the offense years earlier. Had the authorities taken that seriously, they could have ensured the right person was convicted. As it turned out, limitations had run, and no one was ultimately prosecuted for the crime. I can understand why prosecutors look at such claims with skepticism. However, they must do more than dismiss them outright. Somehow they must at least consider the possibility that they may be credible, and at least do some type of investigation.

In the end, I do not see how can be comfortable with executing someone when there is at least an arguable claim of innocence. Perhaps it's my own personal beliefs, but before the ultimate penalty is imposed, I would expect there to be no doubt whatsoever about guilt. Frankly, I do not see how anyone could live with the decision to carry out an execution when there is at least an arguable claim of innocence.

The case of Troy Davis demonstrates where the legal system breaks down. We need to address it, especially if we are going to insist on carrying out the death penalty.


The cost of Life

There have been a number of stories recently about efforts to abolish the death penalty because of cost. A good collection of those stories is here. Currently 8 States are considering proposals to do away with the death penalty because it cost more to execute someone than jail them for life.

What troubles me about this debate is how about reflects on our current culture. Human llife is assigned a value in dollars and cents. At some point apparently its alright to take it as long its not too expensive. Concerns about equality and deterrence, and fear of executing an innocent person are not the subject of discussion; instead, its come down to dollars and cents.

I guess it shouldn't come as too much of a surprise. The vast majority of people believe we have executed innocent persons, yet most of those still believe in the death penalty One life is not all that important; especially when it is a nameless, faceless person. We make the same decisions in other areas of life; it's not limited to the death penalty.

No matter what the reason, I'm happy for the trend. It is costly to handle a death penalty case, and we don't even spend enough now in defending those cases. The economic crisis appears to be just we need to recognize this.


When the mighty fall - excuses abound

Another judge has been in the news this week. Judge Samuel Kent, a federal district judge in Houston pled guilty earlier this week to obstruction of justice. He pled right before his trial was scheduled to start. in addition to the obstruction charge, he also faced charges for sexually assaulting his female staff (which he admitted as part of his plea).

While it's news any time a judge gets indicted (especially a federal judge), there are several things about this case that are interesting. One is the plea agreement itself. To say it's favorable is an understatement. I wonder whether the offer would have been made to anyone other than a federal judge? If it  had been one of the judge's law clerks, or members of his staff, would the same offer  have been made to them?  If you've ever handled a federal case, you know that federal prosecutors rarely allow a defendant to plead on a lesser offense. In fact, most will tell you that department policy requires them to obtain a conviction on the greatest offense established by the evidence. Was there a problem in proof in this case? If so, why did he admit to the conduct as part of the plea?

The perception among the powerful is that the privileged receive special treatment. This certainly does nothing to dispel that perception.

Beyond those considerations is something that surfaces in these situations. I've never appeared before Judge Kent, and don't know anything about him. However, my guess is that he has heard most of the excuses he is now making for his conduct; he was depressed, and his medication wasn't properly adjusted, or some variant of that. I doubt seriously he has ever bought that argument. Yet, he is going to make the same claim, and expect it be accepted. Unfortunately, that state of mind is far too often among the judiciary.

Most judges develop the belief that defendants are different than them. While many judges start off with plans to treat every defendant as an individual, few are able to maintain that. They see cases and defendants, and not people. As a result, they too easily reject valid arguments for why people committed their offenses. For many it is a product of circumstances. I'm sure Judge Kent realizes that now. He has the benefit of a someone judging him who can relate to his situation. For most defendants, judges have no idea what it's like to live in their shoes.

Judge Kent's career is over, so he won't get to apply what he has learned. It would be nice if it served as a lesson to other judges. There is usually a reason why people do what they do; you have to look at them as individuals, and not defendants, to know what those reasons are. If you do that, you are acting as real judge.

What to do when the system breaks down?

The New York Times recently reported on a Pennsylvania judge who plead guilty to incarcerating juveniles for case. The judge admitted to taking kickbacks for sending juvenile offenders to two privately run detention centers. Over 5,000 juveniles have been sentenced since the scheme started, and the judge pocketed approximately 2.6 million. According to the report, the lawyers are expecting a sentence of 87 months. When you consider the impact on those kids who shouldn't have been sent to a detention center, that seems like an awfully short sentence. Most drug offenders get substantially more time than.

I'm sure there is some percentage of offenders that would have been sentenced to the detention center, but there is also some percentage that shouldn't. He was making a nice chunk of money; about $500,000 a year. No doubt that influence his decisions. The kids were money - not children in trouble, who needed help from the system.

No amount of money can compensate those children who shouldn't have been sent to detention. Society is probably going to have to bear the costs for some; no doubt there are some who will be lead down the wrong path because of what happened. Kids are especially prone to becoming what people think of them. If society thinks they are a failure, the tendency is to become one.

I don't know how you identify those who were improperly sentenced. I think you ought to accept that money influenced every single decision. Every case needs to be evaluated, and relief needs to be tailored to be each child. If they are still detained, release is only the beginning. They need to be provided the help and services they need to put their life back together.

Does this also say something about the privatization of detention facilities? Any time money is introduced into the equation, there are those who are going to take advantage of it. It's not surprising something like this happened when you recognize the large sums of involved. Maybe this will be a lesson; at a minimum, we need oversight to ensure something like this doesn't happen again.

There is no easy solution to this issue. Let's hope those in Pennsylvania recognize this, and ensure those kids are taken care of.

Family values - not here

One of the so called issues both political parties are fond of is "family values"; its something everyone wants to appear strong on. Of course the politicians who advocate the strongest are generally the ones who have no idea of what it is. Like most issues, politicians are selective as to when they think family values are important. One area where its never talked about is immigration. Not only is it never talked about, you could say our immigration policies - and especially the criminal statutees - are anti family values!

Living in Waco, Texas, we don't see many prosecutions for immigration violations. There are a few though, and the ones I have been involved with have been disturbing. Everyone knows its a crime to come into the country illegally. The penalties become more serious if you have been previously deported. If you have a felony conviction, the sentences can approach those handed out in serious drug cases. What's disturbing about many of these cases is that are imprisoning people for doing nothing more than trying to be with, and support their families.

I have seen defendants who came over here when they were children. For various reasons they never became citizens, and end up in trouble - often minor offense like shoplifting.  Some don't even speak spanish, and have no family in Mexico. Yet we imprison them, and deport them; we basically send them off to a foreign country, with no support net. It's not surprising that many choose to come back.

I recognize that these people broke the law, and the fault is mainly theirs. However, you can't ignore the fact that they have made lives in this country. They've raised their families, and been productive members of society. They have been good workers, and contributed to the community. When it comes time to sentence them or deport them though, none of that matters.

If you are really serious about family issues, let's be consistent. Instead of tearing families apart, we should spend some time worrying about how to keep them together.

How much control do we really have?

Mark Bennett and Scott Greenfield have both recently posted recently on the role a defendant's children should play in sentencing. It started with discussion about one of the first responses prosecutor's are taught: "he didn't care about his children when he committed the offense, so why should be care about them now?" I want to throw out another of those learned responses: "just because he grew up without a father (or poor, or on the wrong side of the tracks) doesn't give him an excuse to commit a crime".

I just finished a trial where the only issue was punishment. I spent a lot of time addressing his upbringing, including his regular trips to juvenile detention. I don't want to go into details, but his upbringing was horrible, which was made worse by the fact that he was mildly retarded. In response, the State claimed it was insult to all those who came up in similar situations and made something of themselves. They also used another of their taught responses - he knew right from wrong, along with you can't help someone who doesn't want it.

Normally you see this come up in death penalty cases, when much of the focus is on mitigation. Mitigation has a place in other cases also, and in my opinion we out to spend more time on it. That's another post though.

Like the argument about children, the response here makes some sense. After all, a lot of people who come up in bad environments don't go on to become career criminals. Some even go on to achieve great things, and excel. You also can't argue with the statement that a bad childhood (or mental retardation) isn't an excuse for criminal activity. No one seriously suggests it is an excuse. However, it can be explanation for some behaviors.

People are more than their upbringing, but it is still part of them. You cannot truly understand a person without knowing something about their past. To ignore that flies in face of reason. Their past may provide into their behavior, and it is foolish to ignore it. It also provides insight into their future, and may help predict the chances of rehabilitation.

I know there are prosecutors who have come up through difficult circumstances. Many though are children of privilege. They cannot  empathize with the things many of the defendants they prosecute. Instead, the pass judgment, often with arrogance and self-righteousness. I'm willing to bet you that more than a few of those same prosecutors would be sitting in the defendant's chair if they were brought up in the same environment and under the same circumstances.

No one can dispute that the incident of criminal behavior is higher in certain socio-economic groups. The crime rate is higher in the inner city than in the suburbs. If background and upbringing don't contribute to behavior, then how can you explain that?

I have been practicing long enough to know that there are some people who are never going to change, and there is nothing you can do. Society can only protect itself by locking them up. I also know, though, that some people can change, if they only have the guidance and the opportunity. Many only want a chance, and need someone to help them. You can't identify those people without knowing something about them.

For those who profess to be Christians we are told that we will be judged by how we treat those who are the least among us. Prosecutors should remember that more often. And for the next case, try to come up with something more original, and something that actually addresses the issue.


Will Senator Stevens be treated differently?

Its not surprising that there is a lot of discussion about the conviction of Sen. Ted Stevens. He's generated a lot of it, by taking the offensive and refusing to accept the verdict. Despite requests to resign, he kept his name on the ballot, and insisted he has not been convicted. The voters apparently weren't too concerned, as he was re-elected with a convincing margin. the big question now is how long can he keep his seat.

The answer to that question depends in part on whether he has  actually been convicted yet A criminal conviction generally involves two things - a judgment and sentence. Right now Sen. Stevens has been convicted, but not sentenced. So currently  there is not a final conviction. Once he is sentenced though, what happens?

There is no doubt he will appeal, and it doesn't look like he is going to lack for issues. At the top will be the juror who was excused after lying about her father's death.

Under the federal sentencing guidelines, he's sure to get penitentiary time; to stay out, he will have to get an appeal bond, which is not automatic in federal court. To obtain an appeal bond, you have to convince the court that there is good chance your appeal is going to be successful. His status as a United States Senator is not supposed to be a factor, but it would be hard to ignore. It certainly worked for Wesley Snipes, who was allowed to stay out while he appealed his conviction.

Whether or not he keeps his seat may depend on whether he stays out - obviously he can't serve if he is in jail. The question will be what happens if he stays out - he will have a conviction, but in most situations it is not considered a final conviction because there is always the chance it could be reversed on appeal. Ultimately it will be up to Congress - although he's been in a long time, it probably isn't going to help that the Democrats took control.

The answer to the question is that he probably will be treated differently. But then, would he have been prosecuted if he had been anyone else?

A few of the posts on this issue are collected at Sentencing Law and Policy.


Stacked sentences - is it fair?

A jury in Waco, Texas recently sentenced a defendant to 20 years for intoxication manslaughter, the maximum sentence. There were also two people injured in the accident, and the jury sentenced him to 5 years for each of those (intoxication assault). The judge stacked the sentences, and he ended up with 30 years.

There was nothing improper about what the judge did, but the question is whether its right. There are several offenses where sentences can be stacked - sexual assaults are the most common. Those offenses can also be combined in a single indictment, which means one indictment can contain several separate offenses.

There are several problems I see with stacked sentences. One problem is with offenses like intoxication manslaughter, where there is no intent to kill anyone, or hurt anyone. Whether one person is in another car, or ten people, is nothing more than luck (bad luck for the other driver). Is it really worse because there are three people, instead of one? Looking at it from the standpoint of the defendant's conduct, you would have to say no.

Another problem is sexual assault cases. Many times, one incident may consist of several possible offenses. For example, in an indecency case, touching the breast and genitals are separate offense. So is contact with the mouth. It's not uncommon for one incident - that may last no more than a few  minutes, to end up in three or more offenses. The result is that instead of facing a potential sentence of 20 years, the defendant is looking at a 60 year sentence. The threat of that happening results in a lot of pleas.

If the legislature wants to increase sentences, they have the right to do so. They shouldn't allow the State to do it through the back door though, which is what happens with stacked sentences.

The most serious problem I see is that the decision to stack sentences is left to judges. If you are going to allow juries to sentence people, then let them do it. As it is, they have no say in how the sentence they assess is carried out. Even worse, they are not even told the judge can, or cannot stack sentences. Its not uncommon for jurors to ask whether the sentences can be stacked, only to be told they are not to concern themselves with that. Why can't they know that, when they are the ones deciding what the sentence should be?

I'm sure it will never happen, because the legislature is not going to support anything that appears to be soft on crime. But some consistency needs to be brought back to sentencing, especially in sexual assault cases. Jurors also shouldn't be kept in the dark - they should know that a judge may be allowed to ignore what they worked so hard to resolve.

Instead of this, my guess is the only thing that will  change is  more offenses will be added to the list of those that can be stacked.

Kudos to the Commissioners

I have posted before about the jail situation in McLennan County, and the discussion about whether to turn it over to a private entity. Yesterday the commissioner's resolved the issue for at least now, deciding to keep the jail under the Sheriff's department. I continue to believe that the operation of jails is something that should not be reduced to a dollars and cent decision, and they made the right decision.

I'm not sure the issue is over. At least the County judge is focusing on costs, which is his job. You cannot look at costs alone however, as there are many intangibles that must be considered when you assuming control over the lives of so many people.

Of course, I still wish they would focus on the reasons for overcrowding first. Until you address that, no matter whether its the county or a private concern, experience  has shown you cannot build enough jail space.

What's a case worth

Intoxication manslaughter cases have been in the Waco news later. Several weeks ago, a young girl was sentenced to 2 years for the death of her cousin. They had both been out drinking at a party, and had a wreck on the way. During the trial, the victim's parents pleaded with the jury to not send her to prison.

Last week, a young man was given 30 years for the death of a mother, and injuries to her children He had been passing in a no passing zone when he collided with the victim. The wreck killed the mother, and seriously injured one of the children. Obviously, the wreck devastated the mother's family. It also devastated the defendant's family. His brother had been killed several years earlier after drinking too much, and driving his truck into a ditch.

This week a defendant decided to plead guilty instead of going to trial. She had been out drinking with friends, including the victim. The victim had also been using drugs. They ultimately got into a fight, and he got out of the car, and the others left. They came back, and ran over him, killing him - he was lying in the road at the time. She agreed to 8 years instead of going to trial. When interviewed, her law stated it was not a good time to be charged with McLennan County. Obviously, the verdict the previous week influenced her expectations o what could happen.

So how come one defendant gets 2 years, and another gets 30. The easy answer is that different juries may look at cases differently. Still, that doesn't really explain the difference between those two results. Even when plea bargains are involved, there often appears to be substantial disparity between similar cases.

It's no secret that the majority of cases are resolved by plea bargain. When trying to negotiate a plea, both lawyers are trying to guess what a jury would do. The defendant does not want to agree to more time than a jury would likely assess. The prosecutor also does not want to offer substantial less than what a jury would assess. When trying to guess what a jury will do, both sides have to evaluate all aspects of case. That includes the facts of the offense, and a defendant's prior history. Although it shouldn't be a consideration, the circumstances of the victim must also be considered. (that will be left to later)

Plea bargaining has a lot of similarities to gambling, and each defendant's attitude towards risk must be taken into consideration. Some people want to know what will happen, and stay away from risk. For them, plea bargaining allows them to know beforehand what is going to happen. Others enjoy risk. For them, they may not shy away from the risk of a trial, where they might get a lower sentence, or one substantially higher than is being offered.

Another factor which cannot be controlled is the prosecutor assigned to the case. Policies vary among Counties, but almost everywhere prosecutors have some discretion when making offers. In some counties, that discretion is almost unlimited, which creates a real problem for criminal defense lawyers. One prosecutor may be more lenient than another, and the luck of the drawer determines whether a client gets a low offer, or a high  offer. That is one of the more difficult things to explain to clients when they see other people coming out substantially better than they are. It is impossible not to compare cases, and everyone does it.

Just as the prosecutor makes a difference, so does the defense lawyer. Prosecutors know some lawyers have a reputation for pleading everything out, and avoiding trials. They also know other lawyers are going to fight for their clients, and aren't afraid to go to trial if they think that is he best strategy. Without a doubt, the latter are the ones who are most effective in negotiating favorable agreements.

In the end, there is no formula or rule you can use to evaluate a case. There is no substitute for experience. That is the only way you can know how juries and prosecutors evaluate cases. Unfortunately, that leaves everyone with their own opinion, which they won't hesitate to share - all you have to do is look at the comments on most news web sites. Of course, that is also one of the things that makes this Country great.

The role of the victim

There was a recent trial in McLennan County involving the tragic death of a young girl in a car accident. The defendant was her cousin, who was driving, and lost control of the car. They were both extremely intoxicated, and were coming back from a party.

The case generated a lot of publicity, and a lot of discussion. There were numerous comments posted to the newspaper and TV websites. The case was somewhat unique because the victim's family did not want their niece prosecuted. They testified for her at trial, and told the jury they did not want her to go to jail, and that if she did, it would be like losing another daughter. The jury didn't agree, and ended up sentencing her to two years in the prison.

The case is also unique because it raises the question of what role the victim plays in the prosecution of a criminal case. Of course, this isn't a factor in many cases, since they are essentially victimless crimes (e.g. drugs, DWI) However, for those cases involving victims,  the case is centered on them.

After 26+ years of practicing criminal law, I've observed that the role a victim has depends on whose side they are on. If they side with the defendant, they are ignored. This regularly comes up in assault cases involving spouses or family members - they are often dragged into court, even if they want the charges dropped.

On the other hand, if the victims want the defendant prosecuted, they are often allowed to control the prosecution. Another case is being tried because a plea agreement could not be reached because the victim's family would not approve it. Basically, the decision on what was a reasonable offer was left to the victim's family.

There are certainly pros and cons to allowing victims to control a criminal prosecution. Many times, it may not be in the best interests of society as a whole to dismiss a case (think of a wealthy defendant who is able to buy his way out of case by paying off the victim) On the other  hand, the victim is not the best person to decide how a case should be  handled. Obviously they have a personal interest, and many times may not even care about other considerations.

Unfortunately, we have not reached a happy balance. Victims are allowed to control the case when the prosecutor agrees with them. If they don't, they are ignored or dismissed.

The ultimate question is what is the best solution in a particular case. The feelings of the victim and their family is a valid consideration. It is not the only one, though. The defendant and their circumstances must also be considered, as well as the facts of the offense. Unless all those factors are fairly weighed and considered, you cannot reach a "fair" resolution.

Privatization is not the answer

I posted earlier about the jail overcrowding McLennan County is having to deal with. Commissioners have been considering what to do, and one of the proposals is to contract with a private firm to build a new jail, and run it. Jailers have turned out in full force opposing the proposal. They make a number of valid arguments, which all boil down to one central fact - private jails are operated to make money, which generally means providing reduced staffing and services. Jail employees with a  number of years experience are understandably worried, since it would be cheaper to replace them with new, lower paid, employees.

Running a jail is a government function, and not something that should be delegated to the private sector. Granted, county jails often suffer many problems. However, at least there is some oversight, which ultimately rests with the courts. I don't think the same oversight would ever exist for private jails.

There is an even a more fundamental reason for maintaining county control - they are the ones responsible for the problem. It's easy enough to reduce the jail population - don't lock so many people up! There are clearly some people who should be in jail. However, there are also many who should not be, and should not be soaking up our tax dollars.

The first question should be how can we reduce the jail population Until all avenues to do so have been exhausted, building another jail should not even be considered.

Incarceration and the Economy

According to Rebecca Blank, an economist at the Brookings Institute, the current low unemployment rate may be attributed in part to the increase in the number of people in prison. According to Blank, the rate would be about  a half point higher were it not for the people in prison; the difference for black males is closer to a full percentage point.

Her theory makes sense. Most people who end up incarcerated have limited skills, and if they were out would be competing for the lower paying, unskilled positions. With fewer people competing for the positions, the chances of getting a job are higher. She also notes the impact incarceration has for those released from prison. They generally have a hard time finding employment, and may remain unemployed for a longer period of time.

One thing she stated that I thought was interesting was that drug use hasn't increased over the last several years. We are simply locking up more people, for longer periods of time.

incarcerating individuals has effects on society that few people think about. Not only do the taxpayers have to pay for it, they also have to pay for the support that has to be provided to the families of those in prison. Once they are released, we still have to pay for supporting those who cannot find a job. If we thought through the collateral consequences, programs aimed at avoiding incarceration would make a lot more sense.

New jails are not the answer

Grits recently posted on the problem facing McLennan County caused  by jail overcrowding. McLennan County commissioners recently started discussing whether they need to build a new jail, or contract with a private company to build a new jail. Grits pointed out something I was not aware, although it doesn't surprise me; we have the second highest incarceration rate among counties with more than 200,000. Over half the people in jail are awaiting trial, and more than 20% of those only have misdemeanor charges.

He proposes a couple of things, which I doubt commissioners will seriously consider. One is to increase the use of tickets  for certain non-violent offenders. Another was to consider alternatives. like the day reporting program in Tyler. Those obviously make sense, but McLennan County doesn't exactly have a reputation for innovation.

The Courts in McLennan operate efficiently, and make effort to dispose of cases quickly. The number of days a defendant has been in jail is something the judges always know. The problem is that they don't have control over what is being filed. The District Attorney's office in any county has to take primary responsibility for reducing the jail population. They are the ones who file the cases, and decide what charges to file. They are also the ones who basically decide what cases are going to trial; if they don't make reasonable offers, you can't expect defendants to accept them. They also have influence on bail decisions, which forces many defendants to stay in jail while waiting for trial. If you want to reduce the jail population anywhere, the quickest way to do so is to have the District Attorney become involved. In most cases though they are more concerned with putting people in jail, then getting them out.

I remember when the new jail was built. At the time, it was projected to meet the needs of the County far into the future. I had been around long enough to know that was nothing more than a dream. If you the space, it is going to get filled, usually sooner rather than later. The same will be true of any new jail that is built Unless everyone starts concentrating more on keeping people out of jail, we will never be able to keep up with the demand for jail space. Continue Reading...

Impact of Rodriquez on Texas convictions?

Today the Supreme Court decided United States v. Rodriquez, which involved a sentence imposed under the Armed Career Criminal Act. Basically, that Act establishes a 15 year minimum sentence if the defendant has 3 prior qualifying convictions. The issue in the case was whether the defendant had a qualifying conviction for a "serious drug offense" . To qualify, the conviction has to be for an offense that has a maximum term of imprisonment of ten years or more. In the state of Washington, the offense the defendant was convicted of had maximum term of 5 years, unless the defendant had a prior conviction, where the maximum sentence was 10 years. The defendant had a prior conviction, but was only sentenced to 48 months. Thus, the issue was whether the recidivist provision should be considered in determining the maximum sentence.

The court held that you should use the maximum sentence that could be imposed, which was 10 years. The court also pointed out a distinction, which will apply in Texas. Where notice of an enhanced sentence must be given, as in Texas, the enhanced sentence is not applicable unless the notice has been given. For example, a 3rd degree felony can be enhanced to 2nd degree with a prior felony conviction. If no notice is given, then the maximum sentence for purposes of the ACCA would be that for a 3rd degree felony, which is 10 years. Of course, that is still 10 years or more, so it could still qualify if it meets the other criteria.

The bottom line is that  this ruling is going to have little, if any, effect on using Texas convictions.

Hope for "Crack" defendants

The power of federal district courts was reaffirmed by the United States Supreme Court in two decisions delivered yesterday. In Gall v. United States, No. 06-7949 (12/10/07), the District Court had departed downward, and sentenced Gall to probation instead of the recommened guideline sentence of 30-37 months. The Court emphasized again tha the guidelines are advisory, and no longer mandatory. A district court must consider the guideline sentence, but is free to vary from that sentence if it believes that is appropriate. The court noted that the District Court is in the best position to determine what sentence is appropriate. That decision should be reviewed only to determine if the court abused its discretion. As a result, as long as the Court considers the proper factors, it is free to impose a sentence outside the recommended guideline range.

The other case is Kimbrough v. United States, No. 06-6330 (12/10/07). In that case, the Court determined the disparity between sentences for crack cocaine and powder cocaine was not reasonable. The court looked at the sentence for the same amount of powder cocaine, and ultimately imposed the mandatory minimum sentence. The issue was whether the court could impose a sentence based on its disagreement with the sentencing guidelines. Since the sentencing commission has been trying for several years to change the crack cocaine guidelines (and finally did so this year), the court had no problem in holding that was a proper consideration.

The practical effect of both these cases is that District Courts should feel like they can impose a non guideline sentence without fear of being second guesssed by a Court of Appeals. As long as the court articulates the proper factors, the Court of Appeals should defer to the District Court's decision on punishment. It is now the attorney's job to convince the court that a particular sentence is appropriate; Attorneys can again be advocates for their clients.