Saturday, April 07, 2012

Pretrial punishment: "Sentence first - verdict afterwards!"

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first - verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice.

-Lewis Carroll, Alice's Adventures in Wonderland, Chapter 12
Increasingly, not just in Texas but nationwide, more and more punishment of criminal defendants, particularly those accused of misdemeanors, occurs pretrial before any adjudication of guilt. In many misdemeanor cases, defendants are arrested and placed in the county jail where, if they cannot make bail, they wait until the court processes their case. In countless instances, defendants are allowed to plead to time served or receive probation when they finally get to court, meaning their incarceration pretrial was the only time they're locked up for the offense. As of March 1, according to the Commission on Jail Standards monthly report (pdf), pretrial detainees made up 63.6% of Texas county jail inmates. By contrast, just 7.8% of local county jail inmates in Texas as of that date were serving sentences after a conviction.

The evolution of punishment from post-conviction to pretrial was never a conscious decision by lawmakers, but instead was a function of an array of peculiar incentives for various institutional actors. E.g., judges and prosecutors who want to move their dockets have incentives to support bail in low-level cases because a defendant stranded in jail has more incentive to plea bargain than someone living at home with their family. And in many counties bail bondsmen are politically powerful and one of the few interest groups besides attorneys who donate regularly to DAs' and judges' campaigns. But increasingly, as pretrial punishment has become the norm, some prosecutors are beginning to shift the full panoply of state punishment onto as-yet-unconvicted offenders through pretrial release conditions. A good example of this shift arises out of Bexar County regarding DWI enforcement, as reported in the SA Express News ("County steps up DWI crackdown," April 4):
In fiscal year 2011 there were 9,289 DWIs, with 5,457 of those cases new. Twenty-five percent of the Pretrial Services Office's cases are DWI offenders, and District Attorney Susan Reed's 24/7 “No Refusal” program is increasing the number of arrests and convictions.

The Accountability, Compliance and Enforcement (ACE) program will intensify pretrial supervision of DWI offenders through screening and the use of several technologies. Pretrial services officers will work with Reed's office and the court to make no alcohol use a condition of bond for second-time offenders.
Accountability will be held through increased supervision, starting with a psycho-social screening and assessment and followed by specialized supervision, which includes mental health and/or substance abuse treatment, counseling and mandatory Alcoholics Anonymous meetings.

To monitor the compliance with bond conditions, offenders will be outfitted with one or more of the following:

• ignition interlock with a camera.
• ignition interlock with GPS.
• in-home alcohol monitoring unit.
• wireless remote alcohol testing.
• SCRAM (Secure Continuous Remote Alcohol Monitor.
• CAM/GPS (Continuous Alcohol Monitor).

The DWI enforcement unit of the Bexar County Sheriff's Office will help with enforcement by verifying the defendant is operating the approved vehicle with ignition interlock, and arresting defendants who violate the bond conditions.
Those read like probation conditions, but in fact they're conditions of release on bail for people accused of a Class B misdemeanor, the lowest level misdemeanor which can be punished with jail time (but which seldom is). I'm sure there is a legal excuse for pretrial punishment, but like the quote from the Queen of Hearts in the epigraph above - "Sentence first - verdict afterwards!" - it turns the historic role of punishment on its head in a way that borders on absurdity. Why even bother with trials or plea bargains when punishment comes first?

19 comments:

John David Galt said...

Even in cases where the accused is released on recognizance, the fact that he's accused often results in the loss of his job, his rented home, and so forth -- serious consequences which often do not get undone even if he is found innocent. These amount to punishment, too.

It seems to me that authorities ought to be required to keep the names of accused persons secret unless and until they are convicted, on pain of personal liability for defamation damages.

rodsmith said...

it's just another example of the criminal activity of what has pretty much CLEARLY BECOME a ROGUE GOVT!

of course we proved that with our tax system. You will be proud to know we are right up there with Iran. The ONLY other govt on earth that TAXES their citizens on what they MAKE OUTSIDE their own country!

UNLESS of course your a CORPORATIONI!

Hook Em Horns said...

John David Galt raises a valid point. In many cases, the defendant is assumed guilty upon arrest. The way I see it is the result of putting too much confidence in our "system" of arrest, indictment and charging someone criminally. As we are seeing, time and again through DNA and Non-DNA exonerations, the system is getting it wrong plenty of times.

The danger I see in keeping the names of accused persons "secret" is that I don't trust the government with the power to arrest, indict and incarcerate in secret. The precedent this would set is more inherently dangerous than being defamed. The key word is dangerous.

Prison Doc said...

Ditto to both commenters. But no fear, there will be no popular revolution to reverse this. Too much apathy out there.

Anonymous said...

Umm, Grits, if they second time DWI offenders as the article suggests, those would be Class A misdemeanors. I wonder what percentage of the population gets one DWI, let alone two?

Anonymous said...

Mr Galt is exactly correct. And as commentor Phillip Baker points out... The DA will often dangle a plea like deferred adjudication, probation, fine, no time. Sounds good and many are anxious to "get on" with their life. Pretrial punishment and excruciating delays are cards played by the State to get you to play the plead game. However the way information flows nowadays you will be severly restricted in earning power, where you can live, even credit FOR LIFE. In our "Christian" society there is little forgiveness and you will wear the scarlet letter forever, in effect a LIFE sentence. Don't let some weasel attorney plea you out on a flat fee for your case as often happens. They collect their effortless money, are not in a position to challenge the State or piss off the Judge, no fear of retribution. Everybody is happy because you agree to get screwed... Do not discount the long term effects of a "minor" conviction in today's world, it is a LIFE sentence. FIGHT accordingly!

Anonymous said...

Prison Doc: It's not apathy. It's a lack of sympathy for people who drive after significant drinking. It's not really obvious to me why any sympathy is due to someone who puts others at physical risk for the sake of a few drinks.

Thomas Hobbes said...

I'm wondering why the pretrial services office, which should be providing impartial services to the court that ordered supervision, is working with the DA's office. The DA's office should make its position on a given release known to the judge, but shouldn't have a particular role in pretrial supervision once the judge sets the conditions.

Anonymous said...

In Texas the prosecutor is more powerful than judge, jury, or the entire court system.
Shouldn't come as a suprise that they are running the pre-trial program.

If the case is so bad or the docket is so clogged that a DA won't go to trial, why aren't defense attorney's fighting these cases like they would if they were retained?

Also, if someone is on pretrial supervision for 2 years and they get a sentence for 10years, isn't that actually a 12 year sentence?

Anonymous said...

Part of the problem is an adjucation practice that pushes the plea as the first solution for the accused. Many of the accused do not understand the ramifications that the guilty plea brings with it. They do not realize the loss they will bear forever.

Cops run a license and see that a driver has a record of guilty in a former offense. Automatically the driver is assumed to be an undesirable and untrustworthy person. The verdict is in before the facts are checked. We have seen how this practice affects minorities more than it does whites.

And what about the accused who will not plead guilty because he/she is a person with principals who is not guilty? The court's solution to that kind of problem seems to be lock them up and throw away the key. The accused stagnate in jails awaiting trial while the prosecutor, judge and lawyer all wait for him to accept the plea. This can go on months and even years.

Obviously we are talking here about persons who have no financial means to defend themselves. Unless you have money to hire a private lawyer you are stuck in a perverted system where fear is an ever present enemy to justice.

Anonymous said...

When cops are arrested and charged with an horrific crime like child rape they sure aren't punished before their trial. Incredibly, many are released on their own recognizance or a signature bond.

More police officers are convicted of child sex crimes than ALL OTHER PROFESSIONS COMBINED. It's law enforcement's "dirty little secret", and one we're exposing to the entire country on our Facebook pages. Join us and learn the reasons why cops are so attracted to little kids.

http://www.facebook.com/pages/Tribute-to-survivors-of-child-sexual-assault-by-law-enforcement-officers/180584842010594?sk=wall

Anonymous said...

"Prison Doc: It's not apathy. It's a lack of sympathy for people who drive after significant drinking. It's not really obvious to me why any sympathy is due to someone who puts others at physical risk for the sake of a few drinks."

Funny you should say that: The Smith County DA just hired a special prosecutor (in a case that is a political witchhunt) who has 3 DWIs and an evading charge. Apparently, the Smith County DA doesn't think that sort of thing is very serious.

BTW, this guy worked as a prosecutor when he got his 3rd DWI, which is why he didn't go to prison. So, there seems to be a double standard, doesn't there?

Anonymous said...

Just antoher Example of the police state we now live in.Texas da's now make up the rules as they go along.Out of control, over zealos and as predetermined as profesional wrestling

Anonymous said...

It is plain and simple a way for the State and Counties to increase revenue. Bond was designed to insure the accused would appear in court - not a puntative measure by the State. It will also widen the gap further between the accused who can afford these new bond "conditions" and those that can not.

Anonymous said...

Re the special prosecutor in Smith County. My understanding is that he was sentenced to 10 years for the third offense (where the sentencing guidelines are 2-10 years). He's on probation for ten years, so he could still spend a bunch of time in prison if he screws up. There is broad discretion out there in sentencing, but this seems to be within the range that would be applied to normal folks, depending upon circumstances.

Also, although he didn't lose his law license, but he did lose his job with the Gregg Co. DA's office.

Anonymous said...

@ 4/8 - 8:36am

You have hit the nail squarely on the head. You have clearly shown how the criminal "justice system" has drifted so far off course that it lends itself to open and blatent corruption between law enforcement and prosecutors.

Mandatory Sentencing Guidelines are way past due in the Texas State Court System. Make all Misdemeanor offenses fine only unless there is a prior felony offense history. This would empty the jails overnight and give the glutonous counties their insatiable appetite for more revenue.

Anonymous said...

With DWI, often you are dealing with addiction. The addiction itself is separate from the crime. The need for treatment of the addict is separate from the need to prosecute the crime. Because driving is a privilege, the law gets involved, as they should. The Lege is involved, as the should be. Public Safety is enhanced if there is pre-trial services for DWI offenders. If we wait around for the police to file the case, the prosecutor to accept the case, the lawyers to work out an agreement, the offense has become severely stale, and the DWI Offender most likely will have continued to drive intoxicated and will have continued to put lives at risk. The guilt/innocence is a problem where DWIs are concerned. Wait for trial or impose immediate sanctions to the driving privilege?

Gritsforbreakfast said...

4:46 writes, "guilt/innocence is a problem where DWIs are concerned"

Couldn't you say the same thing about rape, murder, etc.? Having to actually prove someone is guilty means you may not get to punish them. But that's not an excuse for punishing them prior to an adjudication of guilt.

The problem comes when DWI arrests are unwarranted. In Austin, for example, nearly a third of DWI cases are dismissed. In such cases, the "sentence first - verdict afterwards" model that you think makes perfect sense results in absurd and unjust outcomes.

It should also be mentioned, the issue of pretrial detention spans far beyond DWIs. In that sense, "sentence first, verdict afterwards" applies in lots of non-addiction related cases as well.

TedByrd said...

As a resident of Bexar and a criminal defense attorney, I believe these pre trial conditions are onerous at best, but not out of character for a psycho bitch like our elected DA. The sad truth is that minorities- a very substantial part of that B Misd population- do not vote, and many times don't even know there is an election. Sad, but true. Additionally, with the crime rate decreasing over time, paradoxically, prople perceive more danger, and these pre trial conditions win votes from the voting-middle-class. Lots of food for though- as always, with Grits