While other ways to free prison beds will be found, it seems almost certain there will be some changes in the application of the parole laws, i.e., the parole approval rates will continue to increase. Some prosecutors will take the position that if a sentence of X years is no longer as likely to mean Y term of incarceration before parole that they must try to plea bargain for a longer sentence. In a sense this change in policy at the local level merely counteracts that made at the state level. What role should the perceived likelihood of release on parole play in plea bargaining or sentencing? I understand that juries are instructed to vaguely consider it but not speculate how it will be applied in any individual case. Is that the correct resolution of the issue for the prosecutor as well?

I got to thinking about all of this after reading Thomas v. Vaughn, No. 02-2213 (3d Cir. 02/21/03). In that case the Court of Appeals essentially told the Penn. Board of Probation and Parole to release Mr. Thomas because they were placing too much emphasis on public safety in denying him parole after his life without parole sentence had been commuted by the Governor. According to the court, the board could not implement any change in parole policies that would result in a significant increase in the chances of prolonged incarceration. The court added that "an adverse change in one's prospects for release disadvantages a prisoner just as surely as an upward change in the minimum duration of sentence." The court concluded the ex post facto clause protects the convict's expectation that "the parole criteria in effect at the time of the crime will be applied."

We now know that if the PMA good time credit law again goes into effect, all persons earning enough credit thereunder must be released (even if the prison population is reduced in the meantime). Lynce v. Mathis, 519 U.S. 433. Is anyone planning for these types of changes in the parole laws? Maybe nothing needs to be changed, but it is foolish to think very many non-3g prisoners will continue to be held for as long as they have been in the past few years. Furthermore, the Third Circuit also says "an offender, prior to his conviction and sentencing, is entitled to know not only his maximum possible punishment, but also his or her chances of receiving early release, since this too is a relevant factor in the plea bargaining calculus." So maybe it is a relevant factor for us as well.

Texas has very long sentences compared to most other jurisdictions, not only nationally, but internationally as well. When I prosecuted in Zimbabwe, a four year sentence was considered a really big deal. The longest sentence you could get was 25 years, and they were very rare. "We reckon, if a chap needs more than 25 years, we might as well hang him," a fellow prosecutor explained to me. Even so, hanging was not common. Only 4 men got the noose during the 2.5 years I lived there.

The relativly long sentences crooks get in Texas should allow parole to be more effectively used to incarcerate the cronic crooks and let free those who have straightened up. One way to do that is to increase the amount of good-time inmates can earn, thus freeing up more beds, and at the same time being more aggessive about revoking parole on those who do not follow thru.

Instead, what I see happen is that most parolees are not revoked unless they are subsequently convicted of a crime. As all of us know, there are many crooks who are arrested for serious crimes, and yet are not convicted. Actual innocence is rarely the reason for their non-conviction. Since parole revocation lacks the right to a jury, and the standard of proof is much less than for a conviction, parole could much more effectivly and cheaply keep parolees on the straight and narrow than the current system of waiting for a conviction before acting to revoke.

You guys would have been happy back in the late 1980's and early 1990's when your philosphy was in full bloom in Texas. An 80% parole rate was used to solve the prison overcrowding problem. But then we also had a rapidly rising crime rate.

Texans already agreed to decriminalize drug offenses in a big way in the early 1990's by dropping what were once first degree felony drug cases to a state jail felony level. Talk of moving such offenses to misdemeanor status now is foolish and would merely shift the financial burden to county governments.

Likewise, the parole system adjusted to a 25% parole rate that has worked quite well for several years. To move that level for the sake of overcrowding will show that history, indeed, can repeat itself if forgotten.

In the late 80s and early 90s parole was even less aggressive than they are now in revoking parole. Even if they had revoked parole, at the rate inmates were allowed to acrue good time (about 1 year off for each mo. of pen time) it didn't make much difference to the inmate whether he was revoke or not.

What I am suggesting is more good time to increase bed space (but not at a 1:12 ratio), and then filling that space with parole violators who fail to get a job, fail to attend AA, hang out with the wrong crowd, violate their curfew, etc. etc. Those parolees who straighten out won't be coming back, and the bed space they would otherwise take up in TDC could be given to a parolee who continues to break the rules upon his release. This could add up to more time for slow learners, and less time for those who want to straighten up and fly right, than these two classes of inmates now get under our current parole law.

John, I am not sure I have expressed "my philosophy", but the point is: almost certainly in the next two years the parole approval rates for all non-3g offenders will be increasing (that is, there will be more of them on the streets percentage-wise than in the recent past). My only question is, do prosecutors need to respond to that phenomenon in any way, e.g., by seeking to increase the sentences assessed.

As I have expressed on this forum before, my solution to lack of prison space is not to limit entrance of those who violate conditions of community supervision (even so called "technical" violators). Rather, they should be revoked and then quickly paroled-- with a final conviction on their record. That is the only way community supervision actually means anything. As far as those sentenced directly to prison, the parole law already pretty much counteracts anything we do. Each additional year of sentence is at most going to mean 2-3 months additional incarceration. I also favor Terry's idea of saying return trips for parole violations are a good idea, but my understanding is all of those folks already go back for at least one year. This is how it should remain. One other novel idea. Why not create a separate set of sanctions for parole violators short of putting them back in the general population? Build "parole violator" prisons, ISF's, or even halfway houses-- something that will get their attention, but at a reduced cost to the state.

I don't know the answer to the prison overcrowding. But I do not think parole necessarily saves money. Having worked in the Attorney General's office, Habeas Division, probably 1/4 of our Federal Writs were challenging the revocation of parole. When considering cost effectiveness, this part of the process should be considered. Many of the revocations challenged were on technical violations, parolees are not just revoked when subsequently convicted of another crime. In fact in the writs I responded to on parole the percentage was probably 50/50. Many times there were criminal charges, but no conviction, other times it was just multiple technical violations.

Why do we diminish the significance of "technical" violations?

A convicted felon who is using drugs, avoiding supervision, hanging around with children, refusing treatment, or otherwise violating the conditions of his release is a serious threat to public safety. We should have learned long ago that we should not have to wait for the victimization of another innocent person to justify using our prisons for separating the criminal from the honest citizen.

And every time there has been a study in Texas, it has largely shown that judges and prosecutors are wisely exercising their discretion. Indeed, the only time such studies are undertaken is when the Legislature needs some cover for releasing criminals.

Last year, we were told that the criminal justice system was wisely using its resources. This year, because there is a budget crisis, those same resources are no longer as wisely being used.

Prosecutors need to become comfortable with the media. Because we are the only body that is willing to tell the public the truth, consistently.

Ahh. But the truth is unlikely to create any money (or prison beds).

They cannot attract enough guards at current salaries, so there will obviously be no more spaces created (except the so-called "contract" beds). Ergo, the back door will be opened wider for longer periods of time (and indeed the front door may grow smaller). End of story. And that is the truth. We may once again see some side effects from that policy, which is what prompted my original post. How should prosecutors respond in their plea bargaining (assuming they believe incarceration provides better protection or a more meaningful deterrent or maybe even a better incentive for rehabilitation/change of lifestyle and attitude)?