Retrospective Repeal of Mandatory Release
The Saga of SB 250
The end of the 1997 Legislative Session is near. The gavel will sound June 2, 1997, somewhere around midnight announcing Sine Die (pronounced Si-Nee Di-ee), a Latin term for adjourning without further meetings. Mandatory Release Retrospective Repeal will be dead and our legislators will be off the hook. They think.
Let's summarize the journey of SB 250 and HB 201. SB 250, authored by Senator Jerry Patterson and Senator John Whitmire, was filed January 21, 1997. It was heard in the Criminal Justice Committee on January 27, 1997 and passed without amendments January 28, 1997. January 30, 1997, SB 250 was placed on the intent calendar and passed out of the Senate with a unanimous vote. The House received SB 250 on February 3, 1997 and it was referred to the Corrections Committee on February 4, 1997. There it languished until May 14, 1997, when Representative Hightower finally allowed this bill to be heard. May 14, 1997, SB 250 was left pending in the Corrections Committee.
HB 201 was filed November 22, 1996. Governor George W. Bush submitted this bill as an emergency on January 15, 1997. HB 201 was read for the first time in the House on January 30, 1997 and on that same day was referred to the Corrections Committee where no further action was taken.
Since both of these bills did not proceed beyond the Corrections Committee, the obvious conclusion would seem to be that Representative Hightower allowed these bills to die. After the "Pass the SB" rally on the south steps of the Capitol in Austin, JFA members, along with Fred Goldman and Rob Teir, went to the House of Representatives Gallery en masse. Members of JFA and citizens who joined us during the rally "pulled" Reps from the floor and encouraged them to suspend the rules and act as a committee of the whole and push SB 250 through. Many Reps informed Justice For All that if the Governor would just nod his head that this bill would go sailing through. Virtually every Representative we talked to said that he/she believed in this bill and would second the motion for a hearing, BUT not one had the intestinal fortitude to stand before his or her peers and request a hearing. So the next logical question is, "Who really did kill this bill?"
During her speech on the south steps of the Capitol, Dianne Clements, president of Justice For All, reminded listeners, "At the beginning of this session, I heard our Governor, my Governor, asked, 'Governor, what if opponents say this bill is unconstitutional?' The Governor replied, 'I look forward to the fight.' Well, it's High Noon and where is the Governor?"
A fervent Fred Goldman challenged the Governor, Representative Hightower, and all Representatives, "When the next victim is killed by a mandatory releasee, will you knock on the family's door and say, 'Your loved one has been murdered by someone on mandatory release and I could have prevented this from happening?' No." Rob Teir, a constitutional expert from the Center for Community Interest who testified eloquently before the Corrections Committee on May 14, stated, "We believe that a strong and persuasive argument can be made that primary feature of SB 250, the change from automatic release to parole determinations, is constitutional. I do not want to mislead anyone. We see the contrary arguments as reasonable, and recognize that it will take a sustained and tenacious defense to usher such a statute through the courts (if it is challenged). Our arguments call for interpretations and clarifications of recent cases, as well as greater attention to the community interest in public safety. Anyone who gets up before you and tells you that this measure is 100% constitutional is kidding themselves, and you. But, the same is true with anyone who tells you with certainty that this law in unconstitutional."
In a letter of support to Justice For All from "Safe Streets", James Wooten, President states, " a properly drafted statute which vests discretion in a decision-making body at the time of a criminal's offense can be modified after that criminal's offense so as to guide that discretion. Our examination of the original 1977 statute which created mandatory supervision indicates that the Texas Board of Pardons and Paroles likely possesses the appropriate level of discretion over which prisoners to release on mandatory supervision."
When this point was brought before the Corrections Committee, Chairman Alan Hightower called Carl Reynolds, General Counsel for Texas Department of Criminal Justice, to the podium. Vice-Chair Ray Allen then asked Reynolds if the parole board has had the authority to change the rules regarding mandatory release, thus not triggering any ex-post facto provisions. Reynolds replied - yes and no.
What? Let's take a look. In 1977, SB 152 was passed. This is the bill that instated Mandatory Supervision. Section 15, paragraph (g) of the engrossed version of SB 152 states: "The Board may adopt such other reasonable rules not inconsistent with law as it may deem proper or necessary with respect to the eligibility of prisoners for parole and mandatory supervision, the conduct of parole and mandatory supervision hearings, OR conditions to be imposed upon parolees and persons released to mandatory supervision."
The bill analysis is even more revealing. "Excerpts from the bill analysis: 'MANDATORY SUPERVISION-TDC inmates are now released without supervision when their calendar time plus "good time" adds up (to) their sentences. This bill requires all released inmates to be subject to mandatory supervision for a term equal to their "good time" credit for good behavior. The bill makes it clear that credit for good time is a privilege, not a right. This time is now credited against a prisoner's sentence. But this bill will allow good time to be used only to calculate a prisoner's eligibility for parole or release to mandatory supervision, not to be credited against discharge of a sentence. Current probation and parole law is far too lax. Also, the provisions of the current law on credit for good conduct make it possible for a felon to get out of prison after serving only part of his actual sentence and without serving any supervised time in the free world. The bill makes clear that good time credit is a privilege, not a right. Some court cases have indicated that if the word "earned" is used in reference to good time, that credit vests and results in commutation of the sentence. This was not intended when the law was originally passed. Good time credit will be used under SB 152 to determine prisoner's eligibility for release to mandatory supervision. The mandatory supervision in this bill is a good idea, but it may not be workable. Statistics show that 70-90% of all prisoners are eventually paroled. Mandatory supervision will put even more people under the supervision of the already overburdened parole system. The mandatory supervision ought to be limited to two years. That's plenty of time to readjust to society."
Furthermore, this language has been carried over for twenty years and is still in the Code of Criminal Procedures - chapter 42.18 section S, subsection g "The Texas Board of Criminal Justice may adopt such other reasonable rules not inconsistent with law as it may deem proper or necessary with respect to the eligibility of prisoners for parole and mandatory supervision."
What does all this mean? Exactly what it sounds like. In 1977, the legislature passed mandatory supervision because inmates were getting out of prison on the mandatory release formula and were not supervised. The 1977 legislation gave the parole board the ability to determine the eligibility of inmates for mandatory supervision. For twenty years, TDCJ has chosen to ignore that fact and has indiscriminately released violent offenders back to society to reoffend. Does this mean that SB 250 is not necessary? Absolutely not. We must have legislation to force TDCJ to do what they could have done all along and to reinforce current laws and statutes.
A lot of questions can be asked at this point. Why wasn't this enforced? How many lives could have been saved if the TDCJ powers that be had adopted "reasonable rules... with respect to the eligibility of prisoners for parole and mandatory supervision...... "? What about rapes, assaults? Those are questions to which we will never have the answers. The question that can be answered. however is WHY WON'T THE LEGISLATURE PASS SB 250?
From the President
Picture this: cigar chewing, poncho wearing, Clint Eastwood. Standing up for right and riding off into the sunset. Who would have thought those spaghetti westerns would depict the 75th Texas Legislative session so accurately. The Good (JFA Bills) The Bad (politics) and The Ugly (killing good bills). Fistful of Dollars (redistribute the tax burden so we can pay for a stadium). For A Few Dollars More ($4 Billion in 1998 TDCJ budget, couldn't $400 million be found to fund SB 250 and save lives?)
On May 14, 1997 the House Corrections committee, chaired by Rep. Allen Hightower, held a public hearing (invited testimony only) on SB 250. Robert Teir, Legal Counsel for Center for Community Interest presented intelligent, fact-based evidence, and specific cites supporting any constitutional challenge to SB 250. Mr. Teir testified for 2 hours assuaging any doubt that could have existed regarding SB 250. Intellectually honest individuals could not come away from that committee hearing without knowing that SB 250 had merit and could quite possibly withstand a constitutional challenge. Frank Parish, Legal Counsel for JFA, testified in support of SB 250. Mr. Parish enhanced Mr. Teir's presentation with more Supreme Court decisions supporting the constitutionality of SB 250. Testimony in opposition to SB 250 came in the form of two University of Texas law instructors and did not provide sufficient argument to declare SB 250 unconstitutional.
However, when the Corrections committee adjourned there was NO VOTE taken. Committee Chairmen have the power to kill bills by simply not voting, therefore not going on record as opposing certain legislation. SB 250 was left "pending".
"Pending bills" are like an elephant graveyard, they are sent there to die. But remember, elephants never forget. Safe Streets is an organization similar to JFA and based in Washington D.C. JUSTICE FOR ALL contacted Safe Streets in our search for constitutional experts to review SB. 250 and HB 201. Through these communications we learned that Mr. Fred Goldman, father of Ron Goldman, is the Public Relations Director for Safe Streets. JFA invited Mr. Goldman to come to Texas and assist our efforts in educating the public and our legislators about SB 250.
JUSTICE FOR ALL was privileged to host Mr. Fred Goldman on a whirlwind media tour across Texas promoting passage of SB 250 and the rally in Austin. Mr. Goldman did TV, radio and newspaper interviews in Houston, San Antonio, and Austin, as well as radio interviews in Corpus Christi, Dallas, and Amarillo via cellular phone (somewhere on I35 or it could have been I10). The trip culminated in Austin where Mr. Goldman spoke at the "Pass the SB" rally. He then took his message directly to members of the Texas House. That message was, "An avenue exists to pass SB 250. The lives of our children and loved ones depend on it. There are 2 roads you can travel. You can choose not to pass this bill into law and never know if we could have prevented tremendous suffering, or we can test the constitutionality of these bills, thereby at least providing the opportunity to prevent such suffering." Not one member of the House took the high road.
Thank you to every person, who wrote, called, faxed, signed petitions, went to Austin, and talked about this bill. The legislature did pass a bill that will provide surgical castration to inmates who have been convicted at least twice of sex crimes against children. This treatment was brought to the public's eye when Larry Don McQuay was MANDATORILY released. Mr. McQuay claimed that he would molest more children if he were not surgically castrated. JFA became involved in raising funds to pay for Mr. McQuay's surgical procedure. However, Mr. McQuay was arrested on additional charges of indecency with a child, and is currently awaiting trial. If Mr. McQuay is convicted he will be eligible to seek treatment through surgical castration.
Finally, the Texas Legislature could use some of what Mr. McQuay is willing to give up; not one of them have any.
Crime Victims Deserve
Constitutional Protection, Too
By ANDY KAHAN, Reprinted from Houston Chronicle 4/16/97
Crime kills more Americans and destroys more lives than all fires, floods and storms combined Crime is the unnatural disaster that ravages our communities every day of the year. According to the Federal Bureau of Investigation, there was a reported crime every 18 seconds in 1995. A total of 37 million Americans are victimized every year. Of those, 10 million are victims of violent crime.
What's it like to be the victim or a member of the victim's family who has been through the sequence of events that accompany s violent act? Imagine, just for an instant - your are at home watching television. Your only child left earlier in the evening to attend a party. The phone rings and the voice on the other end is a police officer saying your child has been the victim of a random drive-by shooting. Your child is in critical condition at a local hospital. You rush to the hospital. Your child will live but potentially faces years of plastic surgery, counseling and physical therapy due to a gunshot wound in the face. But this is just the beginning of your ordeal. Now you enter the criminal justice system. You must attend court hearings. Your child must identify the assailant. As the trial begins, you and your loved ones sit outside the courtroom. As potential witnesses, you are barred from the proceed- ings but the same does not hold true for the defendant His family, friends and supporters are in the courtroom lending support. You sit and wonder: Why don't we, like the defendant, have the same constitutional protection?
For the first time in the victims' rights movement, and indeed in the history of our nation there is a bipartisan effort under way to pass an amendment to the Constitution to give crime victims 'asic protection' including: the right be informed of and be present and heard at key criminal justice proceedings; the right to receive restitution; the right to be free from unreasonable continuances; and the right to reasonable protection from the offender.
U.S. Attorney General Janet Reno has aptly stated: 'The best way to ensure consistency arid comprehensive rights for victims is by including those fundamental rights within the United States Consti- tution. Passage of this amendment will rightly guarantee crime victims the rights they so richly deserve." As recently as 20 years ago, support for victims' rights was virtually nonexistent But now, through the tireless efforts of victims, rime victims' organizations and public policy leaders, we have passed more than 20,000 victim related statutes across the nation.
However, we should keep in mind that measures protecting those rights are meaningless without implementation. Houstonians have a right to be proud of the fact that we have more victim support organizations than any other major U.S. city. Numerous agencies and organizations exist locally assisting victims of child abuse, domestic violence, drunk drivers and sexual assault and helping surviving family members of homicides. Houston is the only city nationwide to actually have an ombudsman assisting crime victims as a full time person on the mayor's staff.
Justice For All is a criminal justice reform group that is one of the premier organizations nationally that works tirelessly lobbying state legislatures to improve the criminal justice system and ensure victims' rights. Other organizations include: Parents of Murdered Children, the Houston Area Women's Center, Victim Assistance Center, Mothers Against Drunk Drivers, the Houston Police Department and the Gulf Coast Survivors of Homicide Victims. Because of the many local crime victims' rights supporters, Houston has been chosen to host this year's National Organization of Victim Assistance annual conference. More than 1,800 people are expected to attend the conference this August at the Adams Mark Hotel. The United Nations will be sending representatives from over 20 countries for an International Summit of Victims' Rights.
Even so, we need to promote greater public awareness of the need to continue to improve rights and services for all crime victims. Citizens should not wait until they or their loved ones have become victims of crime before taking a stand in the united war against crime.
IT IS SIMPLE TO TAKE A STAND! EVERY INDIVIDUAL IN EVERY STATE, CALL YOUR U.S. SENATO AND CONGRESSMAN. ASK HIM/HER FOR THEIR SUPPORT ON S.J. RESOLUTION 6.
NATIONAL CRIME VICTIMS BILL OF RIGHTS
April 16,1997 a hearing was held in the House Judiciary Committee. Testifying were Janet Reno, John Walsh, and other prominent victims advocates.
A full House Judiciary Committee hearing is anticipated sometime in late June of this year. Hopefully, a Full House vote will be in September, 1997.
CALL AND WRITE YOUR CONGRESSMAN TODAY. URGE A YES VOTE!!!!!!
AND THE SUN SINKS ON ANOTHER SESSION
An editorial by Sterlene Donahue
By the time this newsletter goes out, the legislative session will be over. I'm not sure at this point whether I'm glad or riot. Retrospectively (I just can't quite let go, huh?) speaking, we've covered a lot of political turf this legislative session. What a long strange trip it's been.
In a way I'm not too happy. We didn't get all the bills passed that we wanted passed, but we past, and passed, a few good ones along the way. I'm not too sure I'll miss the migraines, neck pains, back pains, and heartbreak of psoriasis, but I will definitely miss the Texas Mercantile and the best little ole fudge-shop in Texas (in Bastrop on the way to the Capitol). I'll never forget the look of shock on the owner's face when that busload of JFA lobbyists pulled up out front.
I got to know George Klages, Rick Lemmon, Barbara Sherrill, and anyone else brave enough to ride with me to Austin a little bit better. Of course, I already knew that short, loud-mouthed Italian from West-by-gosh-Virginia pretty well, but Jeanne Bayley and I always have fun on the road. There's a whole bunch of people I want to thank for putting their efforts, time, money and energy into this legislative session, but that's a different page and the thank you isn't just from me.
I also got to know some of our legislators a little better, too. I'd like to start naming off those I've learned to like and respect more than I used to, but that would be impossible (tongue-in-cheek). Of the ones who were once honest, good legislators, some still are, but a few fell a couple of notches. A couple of 'em fell all the way down. Maybe it was just our presentation. We would have gotten a lot farther on retrospective repeal of mandatory release if Dianne had stuck a stack of dollars in her back pocket. Then when talking to the legislators, she could just yank that money out, give a little hop, and scream, "Retrospective repeal of mandatory release will SAVE YOU MONEY!!!!!"
Some good things happened, too. We made some good points on retrospective repeal of mandatory release and TDCJ can castrate twice-convicted child molesters, now. Of course, it's strictly voluntary on the inmate's part, but that's as it should be. If the molester weren't truly interested in changing, why would one go to that extreme? Look at the Hale Bop comet riders. I mean, you truly have to believe to take the extreme of anything.
We met Fred Goldman, Rob Teir, and networked with some great people in far-away places: Jim Wooten and Matt Webb at Safe Streets, Bruce Fein, Paul Cassell, and many others. It was a long, hard-fought 75th, Texas style.
Yeah, retrospectively speaking, this was a good session.
REJOICE ~ WE CONQUER!!
by William "Rusty" Hubbarth
On April 24, 1997 the victims of Texas, and victim's throughout the entire United States were recognized and vindicated by The Fifth Circuit Court of Appeals concerning the Court's reversal and strong condemnation of the infamous ruling by the lower court in the potentially devastating DANIEL JOHNSON V. RODRUGUEZ case. JUSTICE FOR ALL played a major part in this victory.
Before going into why JFA deserves to give itself a well deserved pat on the back, it is important to examine this travesty and its history. Daniel Johnson, a convicted rapist and escape "attemptor", originally filed a complaint in Federal Court in 1985. It eventually was certified as a "Class Action". After four amendments, a trial was held in 1992 to address Johnson's claims of, one, that for the Parole Board to consider protest letters from victims, survivors, concerned citizens, and trial officials, without allowing the inmate a chance to examine the letters and form a rebuttal, violated the inmates' constitutional rights to Equal Protection. The second claim that survived was that inmates who were classified as "Writ Writers" were being wrongfully (?) denied parole by the Parole Board members, therefore effectively denying the litigious inmates Equal Access to the Courts, regardless of how many frivolous lawsuits the inmate had filed, or had helped less gifted convicts file. I
n the fall of 1995, U. S. Magistrate-Judge Cappelle issued several opinions that basically agreed with Johnson's claims, which. if the order had not been appealed in a timely fashion, would have not only allowed inmates the right to examine the protest letters, (which TDCJ officials stated would be effectively censored to insure confidentiality rights), but to further allow the inmates the new right to have an additional hearing to attack the concerns and allegations presented in the protest letters! The Magistrate went further to state that "protests are often motivated by personal dislike (?) and local political considerations" and that 'the board has based its parole decisions upon protests containing wrong information, that are vindictive, or that are the result of political pressure." RIGHT ON FOR POLITICAL PRESSURE!
As can easily be seen, Capelle's ruling would have not only given a new set of rights to convicted felons, but more significantly would have stripped the victims and concerned citizens of Texas of their opportunity to let the State officials consider the effects that the convicts actions have had or will have on their lives. The phrase that kept coming up was that a "CAPE FEAR" argument needed to be made, as it isn't hard to foresee a vindictive convict being released, as they all eventually seem to be and being focused on revenge against the persons whose input may have kept the convict in prison for a longer period of time. If allowed to stand, the ruling would have perhaps intimidated people into silence, thus denying the citizens of Texas the right to protest, or to have their rightful part in the parole process.
At the time of the ruling, a suggestion was made at the November 1995 Victims Advisory Council meeting that the various victims groups file an 'Amicus Curiae" brief to let the Appellate Court know how strongly the victims of Texas felt about this. When the request was made to Pam Lychner, she agreed completely that it was necessary for JFA to participate prominently, as she immediately recognized the threat that Capelle's ruling presented towards the Victims' movement in Texas. JFA was joined by almost every victims' advocacy group in not only Texas, but the entire United States in filing the Amicus brief. We were very fortunate to be contacted by Robert Teir of the American Alliance for Rights and Responsibilities, who had found several attorneys who were Constitutional experts. The brief was submitted in a timely fashion and the case was heard before a three judge panel last year. The ruling reversing Capelle's decision came down on April 24th.
It is necessary to state that we could not have enjoyed the success that we did if it were not for the competence and extreme effort of several Attorneys in the Attorney General's office who made the actual argument for the State in this case. These brilliant lawyers, all of whom work in the Law Enforcement Defense division of the A.G.'s office, did a magnificent job in preparing the actual Appellate brief. I take a special pride in the accomplishment, as I used to work with them many years ago, and they taught me about litigation, as well as the expectation of aggressive excellence. The lawyers who prepared and argued the brief were Louis Carrillo, Adrian Young, Lee Haney. Daniel Maeso, and the Enforcement Division Chief, Ms. Ann Kraatz. I hope that General Morales appreciates their efforts as much as the victims of Texas do. They really did an outstanding job.
The Fifth Circuit, in a scathing opinion, reversed Capelle and further instructed that the issue of the protest letters be dismissed with prejudice, i.e. that it cannot be relitigated. One of the greatest outcomes of this victory was that it showed what can happen if the various groups join together in a combined effort, and what we can accomplish. The Fifth Circuit took heed of our concerns, and ruled in a way that not only addressed the immediate problem. but also sent a signal that the Victims are a force to be recognized and reckoned with!
Long active in the victims movement, Rusty worked with JFA on the McQuay issue. Rusty is a past counsel for the Texas Department of Criminal Justice and is a member of TDCJ Victim Services Victims Council. We are truly fortunate to call William "Rusty" Hubbarth one of our own!
June 11, 1997: Monthly members meeting. Speaker will be Mandy Allbritton from the Laura Recovery Center. Next month's speaker will be Lois Gibson, HPD sketch artist.
July 15, 1997: The dedication of the Lychner Sculpture, a memorial to Pam, Shannon, and Katie Lychner. The dedication starts at 7:00 p.m. and will be at the Spring Valley City Hall on Campbell Road. Please make every effort to attend this special tribute.
July 17, 1997: Maureen O'Boyle will re-run the program dedicated to Pam. This is the anniversary of the fatal crash of TWA flight 800.
Week of August 17 through 23: Houston is the site for the 23rd Annual NOVA conference. To volunteer please call Andy Kahan, Mayors Victim Advocate at 713-247-1410
August, 1997 This is the month of our annual fundraiser. We believe that we will have another casino party. We need to start collecting silent auction items now. Please think about what you can solicit, or donate for the auction. JFA relies on this fundraiser to pay our bills during the year. Please contact Pat Mancuso at the JFA office with your silent auction donations.
One of the perpetrators in the Brenham Rape Case will be in court July 3, 1997 @ 1:30 p.m. The family will definitely need your support. Let's show 'em some JFA numbers!
The juvenile who raped and tried to murder AF has been certified as an adult. This is a new JFA member and case, so we will keep you posted.
Good news for Pasty Teer. The murderer of her son, Mark, will be bench warranted on June 17th for a hearing to give him his death penalty date. The death date will be September 19, 1997, but he will not receive his punishment then. This death date is necessary to prompt defense attorney's to appeal and keep the case moving through the courts. Give em hell, Pat.
More good news! Prosecutors in the Debbie Foo-Anaston case have decided to seek the death penalty for her killer. The next hearing for the killer is June 17, 1997 in the 184th. Please try to attend.
And even more good news! Prosecutors in the Randy Eng case have decided to seek the death penalty for his killer, also. There will be a hearing in Debbie Mantooth-Stricklin's Court on June 29.1997 @ 9:00 a.m.
You know what's happening here? We have established an important communications link with Harris County Prosecutors for victims families. Our goal is to assure that each case is prosecuted to the fullest extent possible under the law and given the terms of each case. JFA realizes that not every murder case is a death penalty case and sometimes there are serious drawbacks to what may appear an open and shut case. We want to help build a bridge of understanding between the victims families' and the prosecutor. Congratulations Harris County District Attorney's Office. Justice For All applauds you and your efforts.
IF YOU HAVE AN UPCOMING COURT DATE, PLEASE CALL AND LET US KNOW. WE CAN'T PRINT WHAT WE DON'T KNOW. AND WE CAN'T BE THERE IF WE AREN'T INFORMED. CALL THE JUSTICE FOR ALL OFFICE - (713)935-9300 AND LEAVE THE INFORMATION FOR JEANNE BAYLEY.