Saturday, May 17, 2008

The Probation Ineligible Defendant Out on Bond

In talking with former-HPD Chief, and current District Attorney Candidate Clarence Bradford to hear his platform, one of his main topics of concern is the bond schedule. Chief Bradford, quite correctly and admirably has stated that he no longer wishes to see an accused person's bond being used as punishment.

He's absolutely right about that. A bond amount should be set by taking into account the reasoning set out within Article 17.15, and if you will note, none of those reasons articulated is to "pre-punish" a person accused.

That being said, this post is meant to inform folks of a common phenomena in the plea bargain process in the District Courts. It isn't designed to say that something should be changed or that people shouldn't bond out.

It's just to illustrate, folks.

One of the more common things that happens in the CJC is for people to make bond, regardless of their criminal history, the seriousness of their charge, or their ability to be a good candidate on probation. Once a person has made bond, the odds of them signing up for a plea bargain agreement that results in incarceration is slim to none. Understandably, once an accused Defendant goes to the trouble of bonding out of jail, the last thing that they will wish to do is sign a piece of paper that sends them back into custody.

For many first offenders, this isn't a problem. Especially on the "victimless" crimes. A deal for probation or deferred adjudication is signed for and the person goes forward with the hopes of complying with their probationary conditions. (NOTE: Before anyone gets too riled up, the probation and deferred offers will come for the first-offenders who fail to make bond, as well.)

However, often times, a person out on bond isn't eligible for probation. The typical reason being that they have a prior conviction. It is true that even a non-probation eligible person can still receive a deferred adjudication, but it is rarely offered (without exceptional circumstances) to a person with prior felony convictions.

But even offers that would seem incredibly reasonable, if not generous, to a person sitting in custody, seem like a monstrous slap-in-the-face to those out on bond.

These are the cases that get set for trial, regardless of the merits of the case.

A person charged with an aggravated robbery that is caught on video, along with three signed confessions, will take his chances with a jury, rather than sign up for even a minimal plea agreement of five years.

The world's greatest defense attorney can advise a client that a plea offer is fair (or generous), and their client still won't take it.

Some of the most incredible trial stories have sprung out of this phenomenon, too. There have been plenty of Defendants who have refused to sign for two years TDCJ, and in return gotten a 60 year sentence from a jury.

All because the taste of freedom can be so intoxicating that it clouds rational thinking.

4 comments:

Michael said...

At the risk of beating Mark or Ron to the punch, are you advising criminal attorneys to leave felony defendants in jail because it will make it easier to reach a palatable plea bargain? If not, should we be advising jail clients about the perils of changing their perspectives toward trial once they're out of jail? I'm not saying your points aren't valid -- they're a big problem -- but what do we do about them?

That being said, I've not had problems getting clients to sign up to go back to jail, but I don't have the bad boys you're talking about. The worst I had was a defendant in an agg sex assault on a minor that got pled to indecency and 10 years shock probation; I even got a deferred surrender date that he kept.

A Harris County Lawyer said...

Michael Michael Michael.

I specifically wrote in the body of my text: "That being said, this post is meant to inform folks of a common phenomena in the plea bargain process in the District Courts. It isn't designed to say that something should be changed or that people shouldn't bond out."

I was just writing an article to show people outside the CJC about something they might find interesting.

I'm not always behind some sort of evil agenda. :-)

Anonymous said...

What about the flip side of this when the prosecutor uses the defendant's inability to get out on bond to extract a probation plea on a case she (the prosecutor)knows she can't prove and should dismiss? I saw that happen plenty of times when I did appointed work in Harris County, I still see it in other parts of the State. I would say thats the larger problem that needs to be dealt with.

Anonymous said...

However, often times, a person out on bond isn't eligible for probation. The typical reason being that they have a prior conviction

I understand that a Jury may not recommend community supervision for an individual with a prior conviction but what precludes a Judge from suspending a sentence when the defendant has a prior?

/Terry