A Whacked-Out System

In 1997, 52-year-old Robert Gross got popped in Harris County for stealing – or, specifically under the Texas penal code, for "theft by check." He'd never been in any real trouble before, but when the cops came to arrest him, he panicked, jumped in his car, and tried to flee. That didn't work out so well – in part because he sideswiped the cop car as he tried to drive away, which netted him an additional criminal charge of "assault on a public servant." Gross accepted a plea bargain: He'd admit guilt in exchange for a 25-year sentence and avoiding an affirmative finding that he'd used a deadly weapon (his car) in the commission of his crime. Theoretically, avoiding that finding could later increase his chance to earn parole. Gross' lawyer advised him that if he could keep his "nose clean" while behind bars – avoid racking up a disciplinary record, use rehabilitative programs like schooling, and maintain a good behind-bars employment record (things that would help him accrue "good time" credits) – he would become eligible for parole in just more than six years, after serving a fourth of his sentence. With that understanding, Gross offered himself up to the Texas Department of Criminal Justice for incarceration.

By all publicly available accounts, Gross has kept up his end of the bargain. According to TDCJ records, Gross earned his GED and has taken college-level vocational classes; he worked with the prison crime-stoppers program, helping to convict two inmates for murder; and he's held several important jobs while behind bars – including his most recent position as a boiler operator, which literally means he's entrusted with a key to the back door of his minimum-security prison unit, says Gross' lawyer, Texas Civil Rights Project attorney Scott Medlock. In just three years Gross accumulated 22 years of good-time credits and, as a result, first became eligible for parole in 2000. Given his stellar record behind bars, Medlock says, Gross felt confident he would earn release. But he didn't.

In fact, Gross has been denied parole six times – and he has no idea why. He's never been interviewed by a parole board member or commissioner, says Medlock – because, under Texas law, there's no requirement that Board of Pardons and Paroles members actually meet the inmate under review; indeed, there's not even a requirement that the parole board members meet as a group to discuss the cases before them before making their individual determinations about whom to release. In actual practice, each member reviews dozens or hundreds of inmate files with little or no opportunity to confirm their contents, meaning their decisions are often arbitrary at best, and at worst, inaccurate and unjust.

Overall in 2005 (the most recent year available), the Board of Pardons and Paroles reviewed 71,207 offender files and approved 19,582 inmates for parole. These were "desk reviews," considered by each parole board member individually and based solely on what is contained in an inmate's file. Whether the information in the file is actually correct and complete isn't clear, since the file contents are not subject to scrutiny by anyone but the board – except in rare cases, not even the inmates are permitted to review their individual files.

For specific example, the closest Gross has gotten to discovering anything about why he's been denied release is a one-page form letter that offers a standard list of possible reasons for the denial – like, for example, that the inmate is a member of a prison gang or was convicted of a violent offense that makes him too risky to release. But that hasn't really helped either, since none of the possible reasons listed in the letter actually apply to Gross.

Frustrated, Gross filed suit against the parole board and TDCJ for violating his right to due process under law. Now, with the help of the TCRP, Gross is set to present his case in federal district court in Houston, arguing that the parole board has violated his civil rights by denying him a fair opportunity to be granted parole. In the midst of a legislative session full of stern questions for TDCJ and the parole board, Gross' suit provides a real example of what happens when questions of fairness and justice are answered behind closed doors, away from the public eye.

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Rolling the Dice

Perhaps it's fated that Gross' case would land in federal court this year, right in the middle of a legislative session full of hand-wringing over the state of Texas' criminal justice system and full of particularly harsh words for the parole board and its chairwoman, Rissie Owens. Last month, during a joint session of the House Corrections Committee and the Senate Criminal Justice Committee, for example, Owens caught some serious lip. Senate committee Chair John Whitmire, D-Houston, could hardly contain his contempt for the parole board, which he and other lawmakers charge has been violating the parole guidelines that the board itself devised. That pattern has contributed to a bulging prison population, in part because many low-level nonviolent offenders – inmates like Robert Gross – have been denied release, seemingly for no justifiable reason. Indeed, in its review last year of TDCJ operations, the Sunset Commission noted that the parole board clearly hasn't been following its own rules, making its actions frustratingly opaque. In part, the commission "found that the Parole Board has not complied with the adopted parole approval rates since the inception of the guidelines" in the mid-Eighties, reads the report. "Periodic evaluation and reporting, along with consistent use of clear, objective decision-making criteria would provide greater uniformity and fairness in parole decisions, increase legislative accountability, and enhance the public's confidence in the parole system."

In principle, the parole guidelines combine the severity of the offense and the likelihood of an inmate's recidivism to form a numerical risk factor that in turn translates into the probability than an inmate will be released. The parole board is allowed to deviate from the guidelines, but the commission found that it often does so without citing any specific reason beyond those factors already used to calculate the basic risk factor. Instead, "they typically use the same standard explanations for denying parole ... and thus do not explain the departure from the expected parole probability rate," reads the report. "For example, one denial reason relates to the nature of the offense and the use of a weapon – though this explains the decision to deny parole, it does not explain why the panel member deviated from the guidelines."

These very frustrations are at the heart of Gross' legal claims; he argues that the board has repeatedly violated state statute in refusing to release him. The decision to deny him release has repeatedly been made by a single parole board member, and not by a quorum, as required by law; he's never been told why his parole has been denied, which makes the parole board denial "arbitrary and capricious"; and it appears the board has never taken into account the 22 years of good time Gross has accumulated. "In bringing this action, Mr. Gross does not seek immediate release from incarceration," reads his petition to the court. "Rather, he seeks constitutionally sufficient due process in the decisions made regarding his parole." All things considered, it doesn't seem too much to ask.

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Slanted Justice

Whether Gross' claims will impress the Texas judicial system remains uncertain. According to veteran Huntsville attorney Bill Habern, the guru for all things related to Texas' parole and clemency system, there is one major hurdle Gross will face: convincing the court that the parole board's refusal to grant parole violates a "liberty interest." That is, Gross will have to demonstrate that the parole board is depriving him of his constitutional right to due process. Representing himself, Gross first filed suit in 2000, and his case was unceremoniously dismissed by the courts several times until 2005, when his second appeal to the U.S. Supreme Court was successful. In light of a recent high-court decision that defined the circumstances under which inmates could file civil-rights claims to challenge certain aspects of their incarceration, the Supremes said, Gross' case warranted further review. It was pretty amazing: Incarcerated and without legal representation, Gross took his case all the way to the U.S. Supreme Court and won the right to argue that the state has subverted his attempt to secure a fair and thorough parole hearing. (Medlock and the TCRP didn't come on board until after the Supremes accepted his appeal.)

Historically, it's been tricky for inmates to demonstrate a liberty interest within the context of incarceration, especially as it applies to parole, says Habern. Largely, this is because there is no right to be free on parole – to be released from prison before the end of an imposed sentence (in Gross' case, 25 years); so to build a successful civil-rights case, Gross will have to show a fundamental deprivation of liberty. Although many states do acknowledge that an inmate has a right to a due process interest in parole determinations, Habern says the Texas statutes do not specifically acknowledge that right. Thus, according to Habern, the key to reforming the state's parole system is to first amend the law to specifically acknowledge that interest – requiring a legislative concession that the lack of fairness and transparency in the parole process violates the constitutional right of due process. "They have got to create some essence of a constitutional obligation by the state that recognizes a potential for [the] violation" of an inmate's civil rights, says Habern. As it stands, he says, "I've never seen such a dysfunctional system as exists in Texas" – a system that allows the parole board to become a "bully." "They've been bullies so long that they're just used to it." But it's not the individual members that are the problem, he says; it's the system they work under. "It's not the members of the team playing on the field," that slant things, he says. "It's the field" that's slanted.

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Fed to the Lions

The single biggest problem with the current system is that it is built upon a veil of secrecy that separates the parole board from every other aspect of, and individual involved in, the criminal justice system. Indeed, Medlock suspects that Gross' parole file contains some egregious error – perhaps, for example, a designation that Gross is a member of a prison gang, which would certainly work against his bid for release. But, the way the system is currently configured, Gross is not allowed to see the contents of the file and thus has no recourse to correct any mistakes contained therein. In fact, says Habern, parole-file errors are incredibly common. In one client's file, Habern says he found "18 factual errors" in a summary, prepared by a prosecutor who supposedly was describing the inmate's crime. Another time he discovered that somehow his client's modest arrest record had been inadvertently replaced in his file with the lengthy – and violent – record of another inmate of the same name. "It is a whacked-out system," Habern says, a system where you "lose the element of fundamental fairness. It's like saying, 'Go into the arena and fight with the lions – but here, wear this blindfold.'"

Certainly, there is something inherently unfair about a system that eliminates every carrot. Without the possibility of a reward for inmates that avail themselves of rehabilitative opportunities – like education and work programs – what motivation is there to do anything more than mark time? Indeed, says Medlock, one way or another the majority of inmates will eventually be released back into the community. In other words, the trickle-down effect of creating an "appalling" and fundamentally unfair parole system could easily backfire – and, at least in Gross' case, the combination of factors violates his right to due process. Habern agrees: "The whole system of parole in Texas needs to be ripped out of the book and reworked," Habern says. "We've got to get away from this secrecy."

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Parole Approval Rates

Under the BPP's adopted guidelines, roughly 40% of all inmates should be recommended for parole each year. But the board's actual parole approval rate falls well below its own guidelines.

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Offender Risk Level

(1=most violent, 7=lowest risk)

	1	2	3	4	5	6	7
Recommended Minimum Approval Rate:	0%	6%	16%	26%	36%	51%	75%
Actual Approval Rate:	4.8%	14.7%	17.3%	21.9%	34.0%	41.4%	52.2%
Inmates Paroled Compared to Guidelines:	+37	+805	+117	-932	-178	-1,122	-1,130

When broken down by offender risk level – from level 1 offenders (inmates serving time for the most violent crimes), to level 7 (nonviolent offenders at the lowest risk of reoffense) – data from 2005 reveals that the Board of Pardons and Paroles approved violent offenders for parole at a rate far higher than called for under their own guidelines. In contrast, the rate of approval for the least violent offenders fell far below the minimum rate. The reason for this discrepancy isn't clear, in large part because the board's decisions are made in isolation with little or no public review. Among its many recommendations, the Sunset Commission called on the board to update its guidelines, to regularly update lawmakers on board activities, and to actually follow the parole guidelines.