Wednesday, July 8, 2009
Wait Listed by Jail-7
"When Texas Monthly editor Jake Silverstein asked me to contribute a 'Big Idea' for the magazine's May issue on the subject, I'd offered them this provocation, crafted from material in past Grits posts: 'Texas should dramatically slash its prison population and eliminate a majority of felony crimes. We have criminalized too many different activities: Texas has 2,324 separate felonies on the books, including 11 involving oysters. From 1978 to 2008, Texas's population increased 80 percent, while the prison population increased 595 percent. If prison growth had matched population growth, around 40,000 would be in Texas prisons today--instead the number is about 155,000'," Grits for Breakfast, 9 June 2009, link: http://gritsforbreakfast.blogspot.com/2009/06/econometric-support-for-cutting-prison.html.
The article has an excerpt from a UT-Austin professor's paper showing reducing our prisoners would economically benefit Texas. Including 69,000 in county jails, Texas currently incarcerates 224,000 of its 22 million residents, 1%, one of the US highest. Crazie Eddie apparently drafted our parole policies, they are insane. Some examples: If convicted of a "state jail felony" (SJF), you are sent to "state jail" for two years. You serve 98.9% of this time or 722 days. Why? SJFs are not parole eligible. If convicted of a "Class One" felony, with a 5-99 year sentence range, and sentenced to 10 years, when may you be released? After 434 days! In Texas 2 can exceed 10! Unless convicted of a "3(g)" felony, you can be parolled after 11.9% of your sentence. Does a Texas judge really determine your sentence?
More Texas craziness, "discretionary mandatory supervision" (DMS). Can something be discretionary and mandatory simultaneously? In Texas. Until 1996 an inmate, if not convicted of certain felonies, having no "good time" reducing disciplinary cases, reached 47.5% of his sentence, and was released to "mandatory supervision" (MS). Until 1996 parole rates were about 50% and MS, in effect 100%. Simple. Now with DMS, parole rates fell to 29% and DMS 52%. But, DMS shall be granted except in rare circumstances. The Texas Bureau of Pardons and Paroles (BPP) finds 48% of those DMS eligible fall under those rare circumstances.
Of our 155,000 prisoners, 72,000 are parole eligible now and about 70,000 are in for minor crimes, petty theft, drug possession, etc. Giving effect to the overlap, I estimate 110,000 prisoners could be released tomorrow with no appreciable effect on Texas public safety. 155,000 - 110,000 = 45,000; close to Grits 40,000. What's the BPP doing? It's part of a "complex". Many people know of Ike's 18 January 1961 "Military Industrial Complex" speech. Now we have other "complexes", like the Prison-Industrial Complex (PIC), first mentioned here: Atlantic, December 1998, "The Prison-Industrial Complex", link: http://www.theatlantic.com/doc/print/199812/prisons. The Teacher-Educationalist-Social Worker Complex (TESWC) I have criticized before. The BPP people are like educational experts, the former want more prisons, the latter more schoolrooms, which some liken to prisons.
"Government statistics reveal that substantially less than one-third of all first-time federal offenders are held in prison until mandatory release. In addition, 88% of the judges responding to a recent survey stated that they considered the availability of parole when imposing sentence, and 47% acknowledged their expectation that defendants would be released on parole after serving one-third of their sentences", Greenholtz v. Nebraska Penal Inmates, 60 L ed 2d, 668, 690 (1979), Marshall's partial dissent. Imagine, a federal judge wanting an offender to spend four years in prison could divide 4 by 1/3 and give him say a 10-year sentence, 691. "For 'one can imagine nothing more cruel, inhuman and frustrating than serving a prison term without knowledge of what will be measured and the rules determining whether one is ready for release", 693. What is the real sentence, 10 or four years with an "option to renew" the "lease" for bad prison behavior. This is BPP practice. It won't tell an inmate denied parole, "You do this, when we consider you next year, you will be released". The Texas BPP is full of petty dictators. In Boss v. Quarterman, 552 F3d 425 (5th Cir., 2008), Boss was refused habeas corpus after the BPP give no factual findings to support its denying him DMS. In not following Sass v. California Board of Prison Terms, 461 F3d 1123 (9th Cir., 2006), the Boss court ignored the issue, i.e., did the BPP need any evidence to deny DMS. My conclusion, the 5th circuit knew in upholding Boss, thousands of similar cases it doesn't want to hear will be brought. Let them damn niggahs rot in prison, who cares? The Supremes should grant certoriari to resolve this circuit split. Heard that Pretty Boy Roberts?
Did any court carefully review this issue? California's Supreme Court did in Re Lawrence, 82 CR 2d 169 (2008). Would Roberts & Co. follow Lawrence? How bad is Boss? "A Parole Board's exclusive reliance on the severity of the offense to deny parole not only contravenes the discretionary scheme mandated by statute, but also effectively constitutes an unauthorized resentencing of the defendant", Wallman v. Travis, 794 NYS 2d 381, 386 (2005), following New York law. This seems to be an obvious separation of powers or double jeopardy issue. You want to have contempt for the law? Read enough cases. See our judges "reason". See Spot run.