As prosecutors continue to turn in their Two Weeks' Notice and the county-wide Hiring Freeze remains in place, it has gotten to be a relatively bad time to be a prosecutor over at the Harris County District Attorney's Office.
The manpower shortage has resulted in a virtual log-jam of prosecutors who are getting stuck in the same spots for excessive amounts of time. As I've mentioned before, Felony Threes are some of the most overworked lawyers in the legal profession. Back in the Olden Days when I was a prosecutor (yeah, I know I'm starting to sound like Grandpa Walton), a typical first time stint as a Felony Three lasted right around six months.
Now there are Felony Threes approaching a year in their respective District Court. I can't even begin to imagine the burnout they are feeling. One would hope that Lykos and the Gang would start rotating these folks back and forth with their Misdemeanor Chiefs.
You can do that, ya know, guys? I understand if you can't be doing promotions with the budget crunch, but there is nothing wrong with people being Misdemeanor Chiefs and Felony Threes more than once.
But, apparently, alleviating the workload isn't exactly the most pressing issue on the Administration's mind these days.
About a week or so ago, the Edict came down that prosecutors were to no longer abandon enhancements without a valid legal reason.
Well, that's cute. The same office that created Pre-Trial Diversion for DWIs and decided to stop filing Crack Pipe cases has suddenly decided to get tough on crime.
Explaining how enhancements work to the non-lawyer is tricky and complicated. The short version is that if a person has been to prison and/or jail prior to their current charge, the record of the old convictions can be used to "boost" their current charge to a higher level.
For example, a 3rd Degree (normally 2 to 10 year punishment range) can be "enhanced" to a 2nd Degree (2 to 20 year punishment range) if proof is made of a prior enhancement (AKA trip to the penitentiary). If a person with a 3rd Degree has two prior pen trips, their enhancements can change their punishment range to 25 years to Life. The terminology is that person is a "True Habitual", which is Texas' (sort of) equivalent to a "Three Strikes" Rule.
Enhancements are important. I don't dispute that.
But they can also cause a very unjust result if prosecutors aren't given the discretion to "abandon" them (in other words, disregard the enhancements to get to a more appropriate punishment range).
For example, let's say that we a Defendant who back in 1969 served two years in prison for cocaine, and then served another two years in 1972 for a Burglary of a Motor Vehicle (which isn't even a felony anymore). Now, let's say that after 37 years of sobriety, he relapses and gets caught with 1.1 grams of cocaine (a third degree felony).
That guy is looking at spending a minimum of 25 years in the Texas Department of Criminal Justice.
Now, I'm sure that there are plenty of folks who read this blog that would think that's fair, but I don't. And no, I didn't think it was fair back when I was a prosecutor, either.
Now, although he or she may not have a "legal" reason to do so, a prosecutor has the power to "abandon an enhancement", and take the punishment range back down to 2 to 20 years. He could then make a plea offer of 2 years to the Accused. (Hell, if he was feeling really generous, he could even knock it down to State Jail or County Time).
But under the new Lykos Rule, no such flexibility exists for her prosecutors. They can now get in trouble if they plead our theoretical Defendant to less than 25 years TDCJ without a legal reason.
So, what's the fallout from this new rule?
Well, more overworked prosecutors who are going to have to be getting ready for trial on cases that could have easily been worked out if the enhancements were abandoned. That's one thing.
The other thing is that Lykos is showing a complete lack of faith in her prosecutors to do their jobs with the discretion to be compassionate when the situation calls for it.
That's the part that ticks me off, actually. All of her prosecutors have courtroom experience that she'll never have, and she's taken away their ability to use their discretion.
Look, Gang, I know y'all enjoy circling your wagons and believing that only your "Leadership Team" knows what it is doing, but you are really screwing the pooch, here. You've got great prosecutors who know what they are doing down in the trenches. If you've got a prosecutor who is "giving away the farm" on serious cases to avoid trial, then deal with him or her individually.
This policy is ridiculous and needs to be rescinded for the sake of Justice.
And the sake of the poor Felony Threes who are about to collapse under the strain of their jobs already.