Thursday, April 21, 2005

Things I Would Change if I Could

Texas criminal law and procedure is quite a mish-mash of the good, the bad, and the crazy. Some things about Texas law are much more pro-defendant than almost any other state. For example, Texas defendants always have the right to choose whether they want to be sentenced by a jury or a judge. In addition, except for capital murder and aggravated perjury, probation is available for every offense--from first degree felonies right on down to class C misdemeanors--if you have never been convicted of a felony before. However, mixed in with some of these freedom-loving provisions are some nonsensical freedom-hating ones. And I'd like to highlight some of them in the hopes that someone, somewhere will be able to fix them.

Things I Would Change #1 - Backtime credit
To start us off, let's talk about backtime credit. When someone is charged with an offense, and cannot afford to post a bond, they sit in the county jail until that offense is disposed of either by a plea, trial, or dismissal. For a newly charged offense (as opposed to a probation or parole violation), Texas requires that a bond be set. So, if you have a lot of money, you will never have to sit in jail pending disposition of your case. If, like most of my clients, you are indigent, you may sit in jail for weeks or months waiting for an outcome. If someone is sentenced to jail or prison time, he is legally entitled to have the time he has already served prior to disposition of his case credited towards his sentence--mandatory backtime credit. This is the law from capital felonies all the way down to class B misdemeanors. There is one exception to this rule. For state jail felonies--the lowest level of felony in the state--backtime credit is discretionary with the judge who sentences the defendant. There aren't even any rules or guidelines for when a judge should or should not credit this backtime. In my practice, however, the only time I see prosecutors asking the judge not to credit backtime is when the defendant has gone to trial. I think this is outrageous and unconstitutional. First, in the case of denying backtime because someone went to trial, I believe that is an unconstitutional punishment of the defendant for exercising his constitutional rights. But my main objection is that this one class of defendants is singled out for an additional punishment for no apparent reason. These aren't the most serious felonies. In fact, they are the least serious felonies. There is no justification for the disparate treatment. And the worst part is that the great majority of people who suffer this disparate treatment are the poor. In my county, the typical bond set on a state jail felony is $1500. That means that a person would only need $150-250 to post bond. People who sit in jail for weeks or months because they can't post that bond are, by any definition imaginable, indigent. And so these are the people who suffer if they do not receive credit for their backtime. A rich or middle class person would never be hurt by this rule because he will always be able to post a bond on this type of charge. Only the poor get hurt. There are many areas in the criminal justice system that affect the poor disproportionately. But this is one area where there is no logic or reason to support the rule in the first place. Its disproportionate impact on the poor just makes it worse. It's time to change it.


Anonymous Anonymous said...

I was convicted of a State Jail Felony in 2006. I am still stunned at how the "justice" system works. First of all my case took 5 years and 88 court appearances to finally go to trial. The judge did not like my attorney and therefore made me suffer the consequences of her disliking of him. I could write a book on the horror story of how I was treated BEFORE I was ever even convicted. What happened to innocent until proven guilty? Every time I would go to court the judge, her clerk and the officers would talk "just loud enough" for me to hear them talking about me and my attorney. This was a white-collar theft case. The prosecutor showed as evidence the DBA I had obtained, but in her closing argument she (pointing her finger at me) told the jury of my "fake" DBA. When my attorney objected the judge allowed the prosecutor to continue. Of course she then said it another 6 times to rub it in to us that she could. Each time my attorney objecting, but the judge did NOTHING. I knew my case was lost when the judge continued to side with the prosecutor and argued with my attorney every chance she had. At one point during the trial she told him that if he objected ONE MORE TIME she was going to find him in contempt. Well I am appealing my case, but the judge told me during sentencing that she was being "kind" to me by allowing my two days in jail to be counted to my time. By the way, my two days in jail was because my attorney was late to court (not on trial day) so she threw me in jail. She did give me probation + fine because of the new law that went into effect (that my attorney had to argue with her that it existed). I don't get why State Jail Felonies are manditory jail time when it is the lesser of all felonies. The jails are over crowded with non-violent offenders which makes NO SENSE to me. Not a smart way to spend hard earned tax-payers money.

11/08/2006 12:32 AM  
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2/24/2010 10:21 AM  

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