Why Vets’ Crimes Matter and Why They Need Separate Treatment

My Bias
Let me start off with my bias. I am the son of Hull Technician 2nd Class Eugene P. McCann, and the nephew of Airman 1st Class Marty McCann and PFC Tom McCann, wounded twice in Vietnam. I am the brother of former Sonar Tech [Gun] 2nd Class Michael McCann, and Senior Chief Petty Officer Sean McCann, who is still on active duty. I am the uncle of former Staff Sergeant Wilson Dickey, who served with the 10th Mountain in both Iraq and Afghanistan. I am the brother in law of PFC Frank Dickey, an infantryman with the “Americal Division” in Vietnam, and the brother in law of Radio Man Third Class William Wilson, a destroyer and submarine vet during Vietnam. On the days when she claims me, I am the spouse of retired Lieutenant Colonel Mary E. McCann, USAF Nursing Corps. When I say this topic is personal to me, I hope you understand why.

The Good News
Let me also begin with the wonderful news that hundreds of thousands of men and women are not only returning home safe and sound, but successfully re-integrating into our home life and becoming the leaders in our society we knew they would be. That is a tribute both to them and to the success and strength of our modern armed forces.

The Struggle
Yet, there are those who still struggle with what they saw and dealt with overseas. With Veterans Day just past, it is only appropriate that we as a people take up the issue of how to deal with the veterans of all our conflicts whose struggles still go unnoticed.

Veterans Court Programs
I am speaking here today of an initiative of which I am proud to have been a part – the growth of veteran treatment courts here in Texas. I was a founding member of the very first one, here in Harris County, that started back in November of 2009 and is still run by the Hon. Marc. C. Carter. Now, there are both felony and misdemeanor programs, the latter run by the Hon. Mike Fields. Both men are veterans and dedicated to the success of these programs in a way that would make the average citizen proud. They are officially called Veterans Treatment Courts because that is the focus: treating the veterans and getting them the help with the Post Traumatic Stress Disorder, Traumatic Brain Injury, and Depression that many vets experience but for which so few actually receive help.

The courts use both a carrot and a stick to make the vets comply with Veterans Administration sponsored treatment, and thus they cost the taxpayers nothing as those services are already available to the veterans. They need incentive and the court’s authority to go and recognize their troubles.

Why Separate Courts?
Why have a separate court? Simple – no other probation program in the state outside of these programs have treatment for PTSD or TBI. Period. They should, since many people who self-medicate are often trying to escape the nightmares of the trauma that haunts them. PTSD is nothing unique to vets; abused spouses, sexual assault and disaster victims, and many others also experience the trauma of PTSD. Yet only in the VA is such therapy available. So without these courts [and there are over twenty now in the state] none of these vets would actually be getting treatment for the things that ail them. Not one.

Yet there is a more compelling reason, one that is simply and truly a moral debt. Most of us did not serve in these last two decade of endless conflict. Most of us will not do so in the future. Yet we can help those who do by easing their burden and striking a compact with them that, if they will do the things needed to heal, we will keep their records and their honor intact.

There is no better argument for these courts anywhere.

To see why the veterans court is so important and to see veterans helping veterans, look no further than the Houston Chronicle’s story of Carlos Garcia – the mentoring program coordinator for our local veterans court.

Why Private Prisons Do Not Work Well

When I was a boy, I read a story about medieval Italian bands of soldiers of fortune called Condottieri; basically they were mercenaries who wandered from Italian city-state to city-state selling their sword to whomever would pay them. The story made them sound very exciting, even romantic. Later, when I was a bit older, I read a book by someone who actually lived during those times. His name was Machiavelli. He opposed the use of such mercenaries because he said they could not be trusted and because no one works or fights harder than a man who is doing so for his home. Well, let me tell you how old Niccolo would view our modern world of private prisons.

Capitalism and For Profit Prisons

First, let me take the capitalist view as to why these private contracted prisons, run by companies like Corrections Corp of America and The GEO Group, make no sense. Capitalism works on incentives. If you are running a “capitalist” version of state prison, your incentives [ability to make a profit] run two ways.

First, you want to spend as little as possible per inmate.
Second, you want as many inmates as possible.

If you substitute “widgets” for inmates, you see my point — Manufacturers want to spend the least possible on making widgets; private prisons want to spend as little as possible on their source of income which is prisoners. Manufacturers want to sell as many widgets as possible; private prisons want to sell as many prisoner beds as they can to their local communities. So, what then, are my goals as a private prison?

To lock up as many of my fellow citizens as possible, and to spend the least amount on them [food, medical care, mental health treatment, education, job training] as I can get away with.

So, in this limited case, prison profiteering actually interferes with the goals of most rational societies, which I hope we can agree is to reduce the prison population through sensible criminal policies and to reduce recidivism [i.e. repeat business for private prisons] through education, mental health counseling, and job training. It is irrational to foster private prisons because their incentives work against the rest of society. It is similar to Machiavelli’s worries about the dependability of an army that would sell you out to the highest bidder. It simply does not make sense.

Private Prisons as Job Markets?

Next, let me take the practical view of those communities on the ground who want to attract private prisons to their local towns as a source of jobs. What types of jobs are they creating? Ones that guarantee a future of advancement and skill for working families? Well, not really. You see, just as the incentives for corporations that run prisons are to spend less on the prisoners, the same incentives run to their labor force: the guards. There are no “competitive guard” markets where corporations would “bid” for the services of highly skilled guards. That has never existed in our history, excluding wartime companies like Kellogg or Blackwater for their overseas operations.

The reality is that private prison companies will find isolated, impoverished towns that are desperate for anything that looks like a job, offer their leadership and political officers tax money, political contributions, and the promise of jobs for their families and …voila! A new prison is built in a tiny remote Texas town.

This is not “capitalism” …it is good old-fashioned American cronyism. It is the same way that these companies get our state legislature to write laws favorable to privatization. One could call it bribery, but it is a tad less crude than that. Only a tad, however.

What Motivates Private Prisons?

Last, let me address the utterly soulless aspect of building corporate dreams on the backs of imprisoned men, women, and children. [What? You thought juveniles were immune from private contractors? Silly citizen!] While there is a credible argument for the nobility of the public servant who tackles the difficult, often dangerous job of guarding our most dangerous criminals for not much pay and the hope of a quiet pension, what is noble about a person who looks at the most wretched of our fellows and whose first thought is…”There is a buck to be made here?” What inspirational thoughts must run through such a special mind? Are they thoughts such as “Hmm, if I water down the soup, those kids will never notice?” Or perhaps thoughts like “If I do not spend the money for those meds the psychiatrist ordered, who is going to check? The Texas Department of Criminal Justice? hee hee.” If those lines evoke a bit of guilty laughter from the reader, it is because we as a people all know that is exactly who will build, staff, and run these private prisons here in Texas. It is darkly funny because it is so sadly true.

No, I have to agree with my old friend Machiavelli. I would not hire mercenaries to guard my country. As sensible citizens, we should not hire them to guard our prisoners.

Juries as Democracy in Action

Since the beginning of jury trials in England and colonial America, there has been a long tradition of juries deciding that the law, to quote a famous judge, is an ass. I am speaking frankly of juries doing what they want to do, and often acquitting the accused in the face of government prosecution. At its heart, the ability and obligation of each juror to vote their conscience, regardless of the formal requirements or political legislation of the legal system, is perhaps the finest example of the common man and woman’s power to do justice in a democratic system.

To quote even a fairly recent federal Court of Appeals: “If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence… If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.” United States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at 1006.

While many jurors will not know this because they are unfamiliar with the judicial process, it has been and remains a common right of the jurors, once properly selected for service and qualified to be on the jury, to do what they believe is right in this case. John Adams, who became the second U.S. President, in 1771 said of the juror: “It is not only his right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Though it is popular now in instructions to try to dictate to the jurors what they must do, they remain free to acquit as there is no appeal whatsoever from their verdict of “not guilty”.

There have been times when this was used to express common will, such as acquitting the people charged under the runaway slave laws in the 1800s for helping slaves gain freedom. Today, there are so many laws on the books which might offend jurors, from criminalizing marijuana possession to punishing a young woman who was trafficked for being a prostitute to limiting a citizen’s ability to defend oneself, that it is difficult to know which attempt by an often over-reaching state they may oppose.

Though there have been some who have likened this right of juries to a form of civil disobedience, I would offer instead an interpretation more akin to voting in the jury box.

What better way to express disapproval of a law that one opposes than to oppose it as part of one’s legal duties as a juror?

If one thinks of a courtroom as a political debate [which it often is, like it or not] then suddenly this becomes more clear. Is there justice in prosecuting a homeless man or a young mother for stealing food? Is the elected District Attorney doing his job when it is clear that one group enjoys his or her protection a good bit more than another group? Or that a law is unevenly enforced? Is forfeiture or seizure of private property truly justified in a case? [Hint, at least as Texas does it…not so much]. In the end, a juror’s vote is just as much about politics and policy as those in the ballot booth on election day, and they have the same rights our forefathers intended for citizens to call “foul” on an unjust action by the state, whether the state acts unjustly through a prosecutor or the judge or the legislature.

Take the case of a young woman who is charged with being in violation of the sexually oriented business laws, which might require her to [or him, if a male] to wear a license tag on their body in a prominent way. We actually pay police officers to go in to exotic dance establishments on taxpayer time and money to pretend to be drunken businessmen and we pay them to drink on taxpayer time. We do all this so they can help us “regulate” such businesses and charge young people with the “crime” [these are actually misdemeanors, believe it or not] of failing to display their license tag. Certainly that is a true danger for the real drunken businessmen who are forced against their will to enter these places and pay to watch naked people gyrate to music. Yup, thank goodness brave men exist who will drink liquor on my dime to save other drunken men from failing to see a license tag in the dark on a stripper’s ankle. If this seems like an enormous waste of everyone’s time and money, on jury day…tell the prosecution and police so.

So, on jury service day…please remember to get out and vote.

The Conservative Case Against Prison

One might think that the title above is a bit counter-intuitive, yet if the reader will bear with me I believe that the phrasing, and the reasoning, will become quite clear.

Some common core principles of conservatives are that they tend to watch the public dollar closely, tend to believe that society should choose policies that help build families, and also tend to watch for hard evidence that policies work or do not work. Under these core principles, prison, for the most part, does not perform well as an institution or as a way to handle most [not all] crime. Allow me to explain.

Mental Illnesses

In Texas, we currently imprison approximately 186,000 people, mostly men. This is equivalent to a medium sized city in modern America. Amongst those incarcerated, over half, per a 2006 Department of Justice of Justice survey, suffer from a diagnosable mental illness of either depression, schizophrenia, or bi-polar disorder. This survey did not address the presence of mental retardation, traumatic brain injury, post-traumatic stress disorder, or any other of the prevalent disorders of the mind that affect millions of Americans. These disorders, per other studies not as comprehensive as the DOJ survey, are prevalent to an even higher percentage in the prison population. Thus, our prisons now house a significant percentage of the severely mentally ill and traumatized. Mentally ill prisoners, due to the need for medical treatment and medications, are among the most expensive prisoners to house. In Texas, we have so many retarded individuals in the system they have had to set up a special unit for them at Rusk, and its population is over a thousand. That is of the inmates that have actually managed to get identified, and who are so severely impaired they need to be separated from the rest of the prison population. It is not the number of the intellectually disabled in the system, which is quite a bit higher.

Cost Analysis:
prison = $79.00/day, probation = $3.42/day

Our prison system does not work on a cost comparison to probation with drug treatment, drug monitoring and supervision, and work programs. In “One in 31: The Long Reach of American Corrections” THE PEW CENTER ON THE STATES, 2009, cites figures of $79.00 per day for prison and $3.42 per day for probationers. From such cost savings the need for community supervision can be justified as a viable alternative to prison. A Texas study finds that prisons cost $44.01 per day and the daily cost of probation is only $2.13. (2007 Texas Criminal Justice Solutions, TEXAS CRIMINAL JUSTICE COALITION, January 2007).

In Harris County, per the study by the Texas Public Policy Foundation several years ago, a conservative free-market think tank, the Harris County average annual cost for a mentally ill inmate is $7,017 vs. $2,599 for one who is non-mentally ill. One assumes those costs have gone up slightly since then. However, using those estimates it seems we could be doing a lot better for folks with, say, a drug problem, by keeping them in treatment outside of prison, forcing them to look for work, and be subject to drug testing than to place them inside. We have some 60,000 inmates in prison for drug/alcohol related crimes; wouldn’t it be nice to cut our prison costs by one third? By the way, the recidivism rate is actually lower on a probated sentence than a prison one, and let me get to the reasons for that little surprising nugget.

Recidivism Rates

If there is a reader out there who has ever lost a job, been laid off, tried to re-locate after a stint in the service, etc. that person knows how hard it is to find and keep work these days. Imagine doing it when your resume has a four year gap caused by prison. Now pile on the fact that in Texas hundreds of occupations require state licenses that prohibit felons from getting jobs, such as commercial truckers, paramedics, or insurance salesman or tradesmen, and the whole issue of criminals moving on with their lives takes on a different view.

First, let me express the conservative skepticism of state regulatory agencies and their restraint on trade. Leaving that aside for the next legislature, the truth is that keeping men on the outside, sober, and working is a much better recipe for rehabilitation than pretty much anything else ever discovered. By working and performing community service, the probationer earns redemption and pays back his debt, quite literally so when they pay restitution for property crimes and their costs of supervision. They also are able to remain productive members of society and maintain their responsibilities to their families. That last topic is one which I hope will also move fellow conservatives to re-think their views on imprisonment in our society.

Family Policy

Men who are taken from their families and children [and most of the men incarcerated have them] have just been removed from feeding, clothing, and protecting the people who need them most. Children who have a parent in prison are much more likely to commit crimes themselves, thus ensuring a lovely permanent stay in the underclass for their posterity. They are most likely to need state support since their mothers will struggle to keep them from being homeless, and they will do poorly in school. So now, instead of a hundred and eighty six thousand men and women in prison, we have at least that many more young children and spouses on state support, without guidance, and now among the most economically vulnerable to homelessness and poverty. In what conservative, pro-family world is this good policy?

I have hesitated to mention the matter of faith mostly because I consider myself an unworthy sinner most days, and unfit to preach at others. Yet whether it is the Koran’s command to give alms to the poor or for the faithful to seek justice, the Buddhists exhortation to give up violence, drugs, and alcohol, or the example of Jesus pardoning the thief on the cross, we all have a source of spiritual guidance that teaches us a better, more enlightened way to go forward. Perhaps, both in our hard heads and our often better hearts, it is time conservatives re-thought our views on whether prisons belong in our modern Texas in the same way they once did.

Parole Board’s Clemency Work Should Be Transparent

The Legislature is done for another 18 months. That means, to paraphrase one 18th-century wit, that for a time, our lives, liberty and property are safe. However, the end of their session is not the end of the fight for fair treatment and open government in the process of pardons and commutations.

Pardons and commutations are an old executive privilege, one that originated as an act of grace from the kings of old. We tossed out kings a long time ago here in Texas, but we kept one of the more moral features of that old system – the right of our elected leadership to dole out mercy. We love our jury trials here, but they often get it wrong, sadly.

That is why we have appellate courts. It is also why we kept the right of leaders to grant reprieve.

Often, one sees that mercy displayed (well, truly, more often it is not displayed) when a person comes up for execution in Texas. At that time, the Board of Pardons and Paroles, in the Executive Clemency section, will vote for or against a recommendation for commuting (an old word meaning, “to change”) a sentence from death to one of life in prison.

The governor can only grant such a request if the board returns a favorable vote, and those are few and far between. I know because my colleagues and I obtained one such recommendation for a condemned man once in 2009. Gov. Rick Perry chose not to grant that request, though he had granted a tiny handful over his years in office. I mention this so that the reader knows I am familiar with the process first-hand, not as an academic study.

His record, and frankly, the board’s, was even more abysmal in terms of granting pardons or commutations on noncapital cases. Every year of his term in office, Perry and the board (all members were appointed by Perry) received hundreds of applications from nonviolent offenders who had served out their time and reformed, or who had been sentenced for heavy terms of years for minor crimes.

Each year, the board routinely rejected the majority of applications for minor technical reasons having nothing to do with the merits, then voted to recommend a small handful of applications, the majority of which the governor then denied.

In 2013, for example, the board received 632 applications for commutations, pardons and restorations of civil rights. The board only voted on one application for commutation out of 106. It recommended denial. Out of 17 applications for pardons based on actual innocence, it recommended zero. Out of 20 applications for conditional pardons it recommended, you guessed it, zero. Out of 300 applications for general pardons, only 44 received a vote from the board recommending relief.

The rest were sent back for reasons unknown, often called “technical compliance.” A total of 46 applications actually got the rare privilege of a recommendation from the board. Of those, Perry granted 12. Twelve. So, about 2 percent of applicants get relief, based on an executive’s whims.

I say whim because the process has always been a complete mystery to all the folks who apply, regardless of whether they have a lawyer’s help. There are no written opinions issued by the board, or public meetings where the debates among the parole board can be heard.

The governor rarely expresses his opinions or reasons for denial except for an occasional good moment of political theater on an execution date. The rules are opaque and the board meets in secret, with no requirement that its decisions or its reasoning even be communicated to the applicant. But it doesn’t have to stay this way. It is time now for a new governor to begin issuing such decisions, and perhaps, to change how the process works.

Our new governor, Greg Abbott, is an attorney and a former judge with a long history of judicial opinion writing. While not all of us in the legal profession always agree on everything, the value of a clear, transparent process and written public opinions as to why a person was refused or granted a commutation or a pardon would be a welcome change from the last two decades of merciless rejection shrouded in the secretive fog that blinds democracy.

That is something this governor can do, and should do now. We should all challenge him to do so, and to open the process once again so that the people of Texas can actually understand how and when mercy is given, or taken away.

Op-Ed as published in the Houston Chronicle:

Requiring appellate boards to give a written opinion why an applicant’s request was denied a good start
By P. F. McCann Published 4:07 pm, Wednesday, June 17, 2015