Things I Would Change if I Could
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.