He started two disastrous wars that have left millions dead or displaced, sat by while a major American city was destroyed, oversaw the evaporation of trillions of dollars in wealth and will leave office as one of the most loathed figures in American history.
Patients and advocates filled the House Criminal Jurisprudence Committee room on April 5 to testify in favor of HB 658, which would offer medical marijuana patients an affirmative defense against prosecution for pot possession.
The bill, filed by Rep. Elliott Naishtat, D-Austin, and co-sponsored by Reps. Terry Keel, R-Austin, and Suzanna Gratia Hupp, R-Lampasas, would offer the defense for patients using marijuana on a doctor's recommendation for the treatment of a bona fide medical condition. It would also prohibit law enforcement from investigating doctors on the grounds that they'd discussed marijuana with their patients.
Twenty-six states have already recognized the benefits of medical marijuana -- including 10 which have legalized medi-pot and two, Florida and Idaho, which have passed laws creating a "medical necessity" defense to prosecution, akin to Naishtat's current proposal. "This is an issue of compassion, and [of] the right to effective health care treatments," Texans for Medical Marijuana Executive Director Noelle Davis told the committee. The bill is still pending in committee.
In other news, U.S. Rep. Ron Paul, R-Surfside, intends to file legislation this spring that would redefine industrial hemp under the Controlled Substances Act, removing the de facto federal ban on agricultural hemp production. "This is an industrial product," said Paul spokesman Jeff Deist. "This would essentially eliminate the federal roadblocks to industrial hemp production."
According to a recent report from the Congressional Research Service, the U.S. is the only industrialized nation that does not have an established hemp crop. And the demand for hemp products -- from textiles to auto parts to foods -- continues to grow, meaning U.S. companies must import hemp products for sale in the states.
Hemp farming used to be an agricultural staple -- the government actually encouraged production during World War II -- until changes to the Controlled Substances Act made continued production untenable. The CSA drug-war era revisions eliminated the distinction between breeds of marijuana, thus placing hemp regulation under the authority of the Drug Enforcement Administration, which is charged with approving, denying, or just ignoring hemp farming license applications. (The DEA has only ever issued one license, which has now expired, to hemp growers in Hawaii.)
Nonetheless, five states -- Hawaii, Montana, Kentucky, West Virginia, and North Dakota -- currently have laws that legalize and regulate hemp farming; similar legislation is pending in California, Oregon, and New Hampshire. Deist said that the government's broad definition of marijuana, which includes industrial hemp as a Schedule I narcotic, is "preposterous."
"Hemp doesn't fall under the same category [as illegal marijuana] and it is silly that it does," he said. "This is an industrial product." The ban on hemp is merely an "off-shoot of this mentality from a war on drugs, and is not based on reason or fact. There is no rational policy right now." Deist said Paul expects to file the legislation in late May or early June.
Speaking of irrational, federal drug czar John Walters, head of the White House Office of National Drug Control Policy, whipped out his hysterical evil-weed rhetoric last week during a visit to Cincinnati, claiming, again, that marijuana is a hard drug and is now the primary reason for admission to drug treatment facilities, reports the Cincinnati Enquirer.
Walters' pot protestations have become somewhat tiresome -- along with the dubious drug treatment stats, Walters also likes to claim that today's pot is super potent, with THC levels up to 20 percent and higher -- but the man is nothing if not persistent. During his Cinci speech, Walters said it's "crucial" to target preteens with an anti-pot message, since "studies show" that people are less likely to become dependent on drugs after age 19. Marijuana abuse, he said, is a "pediatric-onset disease."
Medical marijuana supporters converged on the Texas capitol Feb. 17 for the Texans for Medical Marijuana lobby day. Medi-pot patients were joined by members of the medical and religious communities to urge lawmakers to pass HB 658 – authored by Rep. Elliott Naishtat, D-Austin, and joined by Reps. Terry Keel, R-Austin, and Suzanna Gratia Hupp, R-Lampasas – which would create an affirmative defense to prosecution for marijuana possession and forbid any law enforcement from investigating licensed doctors for discussing marijuana as a treatment option with their patients.
Patients and others support medi-mari "not because they want to have a party, not because they want to do something deviant, but because they want to stay alive," TMM executive director Noelle Davis said during a noon press conference on the Capitol steps. "This is not about partying, it is about health care."
In all, 26 states have laws that in some manner recognize medi-pot, including 10 that legalize it outright. Florida and Idaho have laws allowing a medi-mari defense, similar to the one now before Texas lawmakers. (Keel authored a similar bill in 2001 that died in committee.) "There is ample evidence that marijuana is beneficial to people suffering from the chronic and debilitating pain associated with cancer, AIDS, and multiple sclerosis," Naishtat told supporters. "Under my bill, a patient would have to prove in court that he or she was suffering from a bona fide medical condition, and that a physician had discussed or recommended marijuana as an option to alleviate the symptoms of a medical condition."
Among those joining TMM on Thursday was 36-year-old Chris Cain, a quadriplegic who has used marijuana to control pain and spasms for the last 10 years. Cain told the crowd that marijuana is the first drug he's used in his 20 years in a wheelchair that actually controls his symptoms without drugging him out like pharmaceutical medicines he'd previously been prescribed. Cain said he's been punished for his outspoken support of medi-pot – a circumstance that would be corrected with the passage of Naishtat's bill.
In July, the Hardin Co. Sheriff's Office, with the aid of two helicopters, raided Cain's home near Beaumont, seized three joints, and threw Cain in jail. Cain spent several hours in jail without medical attention before being released to his mother's care. (The fuzz also seized computer equipment Cain uses to run his search-engine business.) Cain said local law enforcers had been harassing him for four years as a result of his support for medi-pot and his public admissions that he is a medi-mari user. Cain is currently seeking to prove his innocence in court (if it goes that far, since there are some questions about the legality of the raid, he said), and hopes state lawmakers will help him.
"Pass [HB 658] and let me defend myself in court," he said.
The most recent Texas Poll indicates that 75 percent of Texans support medical marijuana legislation; a recent AARP poll revealed that 72 percent of that group's membership would also support such a measure. Additionally, the Texas Nurses Association has thrown its support behind HB 658, Davis pointed out, and last year the Texas Medical Association gave its nod to efforts to protect the right of doctors to openly discuss treatment options with their patients. Davis said that TMM has so far earned the formal support – via petition – of more than 7,500 patients, doctors, and advocates across the state.
Grandpa Walter's Reefer Madness
In other medi-pot-related news, Illinois lawmakers last week heard testimony and then declined to pass out of committee a bill that would legalize possession of up to 12 plants and 2.5 usable ounces of marijuana for use by registered medi-pot patients. Chicago Democratic Reps. Larry McKeon (a former Los Angeles cop) and John Fritchey introduced the bill, which was bottled up on Feb. 17 after federal drug czar John Walters swooped into Springfield to testify against it.
Over the past few years, Walters has increasingly used his position as head of the White House Office of the National Drug Control Policy to lobby against drug policy reform proposals made in individual states, in part by using inflated rhetoric and highly questionable "facts." Last week he was at it again, telling Illinois lawmakers that 60 percent of people seeking drug treatment do so because of marijuana abuse and dependency problems, and recycling his ain't-your-grandpappy's-pot arguments.
"This is not your father's marijuana," he said. "This is not your marijuana when you were in college, if you are a baby boomer. You are suffering from 'reefer madness' if you think it is."
Adding insult to injury, Illinois Capitol Police detained one witness, who'd testified in favor of the measure, for bringing his federally dispensed medi-pot joints to the capitol as a visual aid.
Irvin Rosenfeld is one of seven patients still legally allowed to use medi-pot under a federal research program closed in 1992. He has used pot provided by the feds for more than 20 years, but was detained by police who said they needed to verify his claims before releasing him and his tin of joints. The law enforcement action did not sit well with bill sponsor McKeon.
"I find that disgusting and offensive," he said, adding that he would not be deterred by the temporary setback. "I can't remember ever seeing any White House, Republican or Democrat, put such a massive effort and spend so many taxpayer dollars trying to quash a state bill. ... This is an outrageous misuse of tax dollars," he said. "I'm going to proceed with this legislation, period."
On Oct. 4 medical marijuana advocates with Americans for Safe Access filed a petition with the U.S. Department of Health and Human Services asking that the agency correct misinformation disseminated regarding medical use of pot.
"[The] HHS repeatedly misstates the scientific evidence and ignores numerous reports and studies demonstrating the medical utility of marijuana and its constituent compounds," reads the petition. According to the ASA, the HHS' conclusion that "marijuana has no currently accepted use in treatment" lacks the "objectivity, utility, and integrity of information" required by the federal Data Quality Act.
On behalf of patients nationwide who are "deeply and immediately affected by the [HHS'] controverted statements," the ASA is asking that the agency acknowledge that "adequate and well-recognized studies" show the efficacy of marijuana in the treatment of nausea, loss of appetite, pain, and spasticity, and that there is a consensus among medical experts on the benefits of medi-pot.
Finally, and critically, the ASA wants the HHS to conclude that "marijuana has a currently accepted use in treatment in the United States" – a finding that would help reformers to get marijuana rescheduled from a Schedule I to a Schedule III substance under the Controlled Substances Act.
The feds consider Schedule I drugs to have no redeeming medical value – and therefore there is no reason for their possession. Conversely, Schedule III drugs – including various barbiturates, codeine, lysergic acid (the LSD precursor), GHB, Ketamine (aka "Special K"), anabolic steroids, and methadone – have medicinal use and can be legally obtained by patients, typically (though not always) by prescription.
The ASA and other medi-mari advocates descended on Washington, D.C., to deliver their petition and to rally at the HHS building, where they unfurled a 600-foot-long banner displaying the names of more than 7,000 doctors who support medical marijuana. The reformers – including medi-pot patients from across the country – tried to deliver the banner to HHS Secretary Tommy Thompson, but to no avail; 14 advocates were arrested after blocking entrance to the building.
The HHS has 60 days to respond to the ASA petition, ASA representative Stacey Swimme told the Drug Reform Coordination Network. "We expect them to ignore it, but after 60 days we will have the opportunity to take them to court," she said.
In 2003, Williamson County Sheriff's Office investigators made a series of significant felony drug busts. In January and again in October, WCSO detectives dismantled two methamphetamine lab operations – one near Georgetown and one further west, in Liberty Hill; three people were arrested and charged. During the same period, undercover investigators – including at least one of the detectives involved in the west side meth busts – spent six months making a series of crack cocaine buys in Taylor. Those transactions eventually resulted in nine arrests.
Despite the large quantity of drugs and methamphetamine-manufacturing chemicals seized by investigators, neither of the speed-lab busts made the news. By contrast, the December arrests of the nine Taylor crack suspects made headlines. In press accounts, Williamson Co. District Attorney John Bradley labeled the nine suspects "well-connected" and "high-level" drug dealers.
The two sets of drug cases bear some superficial similarity. Significantly, WCSO and court records suggest that law enforcement officers built solid cases against each of the 12 defendants. But there are at least two significant differences between the two sets of cases. In the first place, the Taylor nine are black, the meth cooks are white. There was also a difference in the quantity of drugs seized – the Taylor nine were arrested for dealing between one and approximately 45 grams of crack; the three meth cooks were charged with the manufacture, possession, and intent to deliver more than 200 grams of speed.
Six of the defendants arrested in connection with the crack and meth busts have had their cases adjudicated and disposed. Only one case has been heard by a jury in open court; five cases were disposed of through plea bargains negotiated with Bradley's office. Of the five plea-bargained cases, three defendants – including two of the Taylor nine – are doing jail time for their crimes.
One of the meth defendants had a previous felony drug bust, and agreed to a seven-year prison term – a sentence much lighter than those now being offered by prosecutors in several of the crack cases involving both lesser amounts of drugs and less-experienced defendants. The other two meth defendants whose cases were bargained out did even better – they were offered deferred adjudication, meaning that, if they successfully complete the terms of their probation, all record of their guilty pleas in connection with the speed-lab cases will be expunged.
For a county that has spent more than two decades cultivating the image and reputation of being "tough on crime," the apparent disparity of punishment meted out between the two groups of alleged drug dealers is somewhat puzzling – even to some involved in Williamson Co. law enforcement.
The situation is not surprising to others – including two national legal experts – who suggest that the disparity is symptomatic of the nearly unchecked power prosecutors now have to decide the fate of defendants in plea-bargained cases. Nationally, plea bargains account for more than 90% of all criminal case dispositions. "There is an enormous shift of power away from the judiciary and over to the prosecution. The judges are a lot like clerks," said Steven Bright, professor of law at Yale and Harvard universities and executive director of the Atlanta-based Southern Center for Human Rights. "So really, all of the power is being exercised by the district attorney."
Still others say that the apparent disparity is attributable to one thing: the race of the defendants. "For the most part [Bradley's office offers] harsh sentences across the board," said Nelson Linder, president of the Austin chapter of the NAACP. "But based on our analysis, they are harsher for African-Americans."
Linder and others ask: Williamson County's law enforcers may well be tough on crime – but are they tough and color-blind?
Ounces and Ounces
On July 11, 2003, after a brief meeting with a ponytailed man in the parking lot of a Taylor car wash, Floyce Lee Jackson got into a white four-door Buick and headed north on Main Street, carrying $1,000 in cash, and leaving the ponytailed man holding two flat, white "cookies" of crack cocaine folded inside a fast-food hamburger wrapper. What Jackson didn't know was that the ponytailed man, who'd telephoned Jackson earlier looking to score, was actually undercover WCSO investigator Gary Haston.
Between April and September 2003, Haston (a former U.S. DEA agent), WCSO Detective Sharif Mezayek, and other members of a joint WCSO-DEA task force, conducted more than a dozen similar buys in the small eastern Williamson Co. railroad town, scoring nearly $20,000 worth of crack, according to reported estimates.
The undercover operation culminated in December with the arrests of nine people. Each was charged with first-degree-felony "delivery of a controlled substance," punishable by up to life in prison.
"What surprises us is, when asking the [Taylor] crooks to deliver the drugs, they were willing to deliver in ounces and ounces," Bradley told the Austin American-Statesman. "Once you get that amount being delivered, you know you're dealing with a substantial problem."
Bradley's description was dramatic but misleading: When all was said and done, the accused Taylor nine, collectively, delivered to investigators just over five ounces of crack. The two largest busts netted just over 1.5 ounces each, while four of the buys were for about one gram of crack – hardly the "ounces and ounces" Bradley described to the press. (A gram is about the weight of a paper clip, and there are 28 grams to an ounce.)
Nonetheless, five of the Taylor defendants had prior criminal records – including convictions for drug possession and/or delivery. Regardless of the amount of drugs they allegedly dealt to investigators last year, their records would increase their potential punishment this time.
Indeed, when Jackson met with Haston, he was on parole after serving fewer than 10 years of a 27-year prison sentence on a Potter Co. possession case. That circumstance, combined with his four other priors (two for possession, one for burglary, and one for theft), made Jackson's case, in courthouse lingo, the "high bitch" of the Taylor nine. In other words, in the view of criminal attorneys, Jackson was the defendant whose record meant prosecutors could reasonably expect to secure a life sentence, regardless of the amount of drugs he'd sold in this instance. (In fact, the cookies he'd sold weighed just over 1.5 ounces, the second largest package delivered during the operation.)
Given those circumstances, it wasn't a surprise to Jackson's appointed legal defender Carlos Barrera that Bradley's office intended to try Jackson's case first. Defense attorneys say that when there are multiple defendants, prosecutors will often try the "high-bitch" first in order to create a precedent – and, if a jury convicts and if the sentence is long enough, thereby persuade other defendants to accept whatever plea deal is offered.
What did come as a surprise, Barrera says, was the deal prosecutors offered his 53-year-old client: 50 years in prison. The offer was essentially a life sentence for Jackson, who wouldn't be considered for parole for 17 years. Of course, given the county's record of obtaining guilty verdicts in jury trials – in the last three years only two defendants have avoided a guilty verdict – there was little doubt Jackson would do time. Realistically, the only question was how long he'd be locked up. In the end, Jackson opted for a jury trial.
After two days of testimony, Jackson was found guilty and sentenced to life behind bars.
Pounding the Defendants
So far, Jackson has fared far worse than the other Taylor defendants, including those who have been offered plea deals but have yet to decide whether to accept or to take their chances with a jury. In what now seems an act of razor-sharp foresight, two of the nine pled early, accepting what are likely to be the very best deals Bradley's office will offer any of the nine.
In May, 43-year-old first-time felon Joyce Lee Harris waived her right to trial (and her right of appeal), pled guilty to one count of delivery, and accepted a five-year prison sentence. According to her indictment, Harris was charged with the May 2003 delivery of "between four and 200 grams" of crack. However, in the probable-cause affidavit filed for her arrest there is in fact no mention of a May buy; instead, Detective Mezayek detailed an April 2003 buy during which Harris sold investigators 0.79 grams of crack. Also in May, Norma Faye Wright, 39, another first-timer, became the second of the Taylor nine to take a deal, accepting a 15-month state jail sentence for selling 0.12 grams of crack on April 3, 2003.
Those deals, attorneys close to the Taylor nine cases say, were the most lenient offered by Bradley's office. Barrera says that prosecutors originally offered Jackson 20 years for a guilty plea, but that Bradley yanked the offer shortly after it was made. Indeed, other sources told the Chronicle that shortly after Harris and Wright pled out, Bradley standardized all future offers for the Taylor nine, directing his prosecutors to offer nothing less than 20 years of hard time to each of the defendants – two of whom have no prior felony record.
"This is as much a reflection on the conservative [views] of Williamson County [residents] as it is on the prosecutors," said one area defense attorney who practices in the county. He also asked to remain anonymous, citing a fear of retaliation for speaking harshly of Bradley's office. (Incidentally, this source was not alone; numerous attorneys expressed this same concern and agreed to speak to the Chronicle only on condition of anonymity, while others declined to comment at all.)
DA Bradley also has a reputation for "micro-managing" the office, the source said, and the deals that come out of his office are intended to "pound" defendants. But county voters are complicit in the practice, the attorney said: Williamson Co. "jurors have a perverse view of what crime is."
After repeated requests for an interview to discuss his approach to prosecutions, Bradley agreed to respond in writing to a list of questions submitted by the Chronicle. But a week later, Bradley told us that he had changed his mind and, citing "ethical" concerns, declined to answer any questions for this story.
Different Folks, Different Strokes
Also last year, county sheriff investigators busted two methamphetamine-cooking operations in the western half of the county. Those cases resulted in outcomes quite different from those of the Taylor nine. In January, officers with the sheriff's Special Missions Team (including Detective Mezayek) raided a house near Andice, northwest of Georgetown. Inside, they found four people, including Paul Morrow, then 38, who told Detective Kevin Hallmark that the officers would find "dope" in his bedroom. On a desk, Hallmark found 15 small zip-locked plastic baggies, "all of which contained a white powdery substance," he wrote in his report. Collectively, the bags contained approximately 11.3 grams of meth.
Hallmark also found empty pseudoephedrine-tablet blister packs, a can of acetone, three bottles of an "unknown liquid," muriatic acid, Red Devil lye, and a small bottle "of what I believe to be red phosphorus" – among other items "consistent with items commonly used in a red phosphorus 'lab' for the production of methamphetamine." The officers called in additional investigators after finding "numerous" other items, including guns, power tools, and three auto trailers, which they "believed to be stolen," Hallmark wrote. Morrow and three others were booked into the county jail.
The Department of Public Safety lab later confirmed the presence of methamphetamine, pseudoephedrine, and red phosphorus among the items taken from Morrow's house. The DPS also reported finding 8.7-milligrams-per-milliliter of methamphetamine in a 589-gram liquid mixture found at the house. Morrow was charged with two counts of felony manufacturing at least 400 grams of meth (including any "adulterants" or "dilutants"), and with possession with intent to deliver the same, charges punishable by between 15 to 99 years or life in prison and a fine of up to $250,000.
That fall in Liberty Hill, investigators responded to a call from someone complaining of a "strong chemical smell" coming from 36-year-old Carl Clay Wright's property. Detective Mezayek had received similar complaints in the past, he wrote in his report, so he and several other officers with the sheriff's narcotics and K-9 units went to check it out. Wright was in the front yard when the officers arrived; he told Mezayek that another man, Randy McAnally, was out back, "cooking methamphetamine." Wright said that he'd quit cooking the stuff and that the items in the backyard shed actually belonged to McAnally.
From the shed, Mezayek seized several bottles containing layered liquid mixtures (one field-tested positive for meth), a jar of Red Devil lye, a 32-ounce can of lighter fluid, two boxes of pseudoephedrine tablets, and a bottle of red phosphorus, among other items. Wright and McAnally were arrested. On Nov. 12, 2003, Wright was indicted on two counts of manufacturing and possessing between 200 and 400 grams of meth (punishable by 10 to 99 years, or life, in prison, and up to a $100,000 fine) and on one count of possession of "precursor" chemicals subject to regulation under the state's Controlled Substances Act.
Morrow and Wright each had prior criminal records. Morrow had four prior misdemeanor arrests, including two theft charges and a charge of driving on a suspended license. Wright had five priors, including two dismissed marijuana possession charges, an assault charge, and a charge of unlawfully carrying a weapon. Theoretically, given their criminal histories and the seriousness of the meth charges, Morrow and Wright should've been in the same boat in which the Taylor nine were rapidly sinking. But they weren't; Indeed, as a result of the 2003 meth busts, neither man spent more than six months in county jail.
In Morrow's case, Bradley's office dropped the manufacturing charge and, in exchange for a plea of guilty on the possession charge, Morrow was offered 10 years deferred adjudication, 180 days in the county jail – balanced against a 174-day credit for time already served – and a $2,500 fine.
For Wright, the state dropped the drug manufacturing and possession charges and offered eight years deferred adjudication, 120 days in county lockup, and a $2,500 fine, in exchange for a guilty plea on one count of possession of precursor chemicals. (Randy McAnally, who had a previous meth-related felony conviction, pleaded guilty to one count of possession of precursor chemicals and was sentenced to seven years in prison.) Significantly, because the DA's office offered deferred adjudication on the sentences, if Wright and Morrow successfully complete the terms of their probations, all record of their guilty pleas will be wiped from their criminal records.
Stark as it appears to be, the disparity between the sentences offered to Morrow and Wright and those offered to the Taylor nine comes as no surprise to many involved with the Williamson Co. criminal justice system. The county's tough-on-crime image is a conscious, long-enduring official construction aimed at maintaining a public perception, some critics charge – but which has successfully obscured a much grittier reality.
"There is a big difference between [the] public relations image that the DA will cultivate and the reality of the office," charges Keith Hampton, an Austin defense attorney and legislative chair of the Texas Criminal Defense Lawyers Association. "[In] a county like Williamson, that likes to portray itself as 'tough on crime,' [the question to ask is] what, exactly, does that mean?"
Bullying and Bias
As it turns out, what it means to be "tough on crime" in Williamson Co. depends upon whom you ask. It also depends on exactly what you ask. To hear Bradley tell it, the county's system of criminal justice is transparent and fair.
"We prosecute people for the crimes they commit," he told the Statesman in 2002. "If a criminal gets a long prison sentence, it is because he or she deserved it." Judging only by the office's conviction record in jury trials, Bradley's assertions appear true. From January 2002 through June 18, 2004, his office tried 40 felony cases – involving a diverse group of defendants facing a variety of charges – and secured convictions in all but two.
But others charge that Bradley's simple cause-and-effect explanation masks a much more complicated reality. Indeed, although the county's felony jury trial system has sent 38 offenders to prison in the last 21 years, since 2000 the DA's office has sent nearly 3,000 people to prison. In other words, the overwhelming majority of the county's criminal defendants have their fates decided through plea arrangements – a process that happens in the hidden halls of justice, with a minimum of public scrutiny.
In this regard, Williamson County's system of criminal justice is little different from any other around the country. Nationally, over 90% of criminal cases are disposed of by plea arrangements. Many argue that the system must handle cases in this manner; without pleas, court dockets would be inextricably backlogged and the wheels of justice would grind to a halt.
However, the plea system is also ripe for abuse, because it offers the state a vast and unchecked discretion to determine the fate of criminal defendants based on unknown or arbitrary criteria – and, potentially, upon deep-seated biases – all without the check of public scrutiny.
"There is no way to evaluate it, that's one of the problems. It is a low visibility system," said Albert Alschuler, Julius Kreeger Professor of Law and Criminology at the University of Chicago and a former UT law professor who has studied plea systems for more than 30 years. "The prosecution is tough in newspaper cases and [is] giving away the farm on everyday cases. It is very difficult to review. It is not like there is a public process."
In total, he said, it is a disturbing way to conduct the public's business. "The administration of justice is important, but largely not visible."
Empirical evaluation of a plea bargaining system can only happen if prosecutors put every offer into writing and into the public record, and that doesn't happen, said Steven Bright, executive director of the Southern Center for Human Rights.
"It is an almost Herculean task to try and figure it out," he said. Further complicating the matter, Alschuler said, is that in 98% of cases, judges rubber-stamp whatever sentence the prosecutor offers. Bright agrees. "The problem with plea-bargaining is that there is not much bargaining; the DAs have a take-it-or-leave-it policy," he said. "Sentencing ought to be done by judges, not prosecutors. [Prosecutors] are advocates and they're one-sided. That's not the way it should be."
In the absence of oversight, they agree, justice is often determined by two things – bullying and bias – and conscious or not, much of the bias involves race. Plea bargaining "becomes an end to itself [with] prosecutors bludgeoning people into pleading – 'Well, you're welcome to go to trial, but if you do you'll be facing more time,'" Bright said. Alschuler agrees. Bargaining is "highly discretionary," he said. A prosecutor "can make it in a defense attorney's best interest not to defend the client – and if you don't win, you're going to get socked."
Many local criminal defense attorneys say this is exactly what happens in Williamson Co. Indeed, many told the Chronicle it is a major reason they won't take cases there any more.
"I refuse. It's been almost 20 years. I was very much mistreated; my clients were very much mistreated," said Betty Blackwell, a veteran Austin criminal attorney and former president of the TCDLA. In Williamson County, "the defense attorney takes on the persona of the defendant," she said. "This doesn't exist almost anywhere else, where they recognize the Sixth Amendment right to be represented by an attorney."
Similarly, Hampton hasn't taken a case in Williamson since about 1995, "because my clients were treated harsher, literally, because of me," he said. "What they encourage there are obedient criminal defense lawyers." Bradley, he said, doesn't "understand the value of what an independent ... defense attorney brings to the table. He wants to run it almost like a bureaucracy."
Apparently, these are criticisms Bradley has heard before, and condescendingly dismisses. "I think that I'm an aggressive prosecutor," he told the Statesman in February 2002. "I work very hard to make sure that I know the law that I'm pursuing and I know that occasionally hurts the feelings of the defendants that I'm trying to put into prison." The reporter apparently didn't ask whether he also prefers defense attorneys who operate under the same priorities.
Still, a take-it-or-leave-it policy, such as many attorneys say exists in Williamson – shadowed by the specter of potential retaliation in the event an attorney should decide to "leave it" – has translated into a lopsided system of criminal justice, under which minority defendants are vulnerable to injustice based on racial bias.
"I hate to use a big brush," said Blackwell, "but I'd say it's safe to say that in felony cases that is true." Austin attorney Larry Sauer agrees. "Nobody likes to go" to Williamson County, he said. "They're unreasonable with their [plea] recommendations." Moreover, he said, "blacks and Hispanics don't fare as well" as white defendants. To be fair, notes Hampton, disparity in sentencing happens not only in Williamson, but also throughout the criminal justice system.
"There is a disparity, it's well known, documented and studied," he said. "It seems to be not so much racial, but aimed at the people who are the most vulnerable. It's not race, but wealth and power, and it happens to be that minorities are disproportionately represented" among the poor and powerless.
Whatever the specific causes, Bright said, the criminal justice system is biased against minorities, especially African-Americans. Some of it is unconscious, he said, but "the criminal justice system is generally very biased against black people. They are largely excluded from participation. The lawyers, prosecutors, juries, and judges are white. District attorneys are overwhelmingly white. [And] there are hardly ever going to be black people on the jury anyway."
Indeed, in Floyce Lee Jackson's case, jury bias was initially cause for a mistrial. Jackson was originally scheduled to stand trial in July, but that was pushed back a month after Barrera won a favorable ruling from District Judge Burt Carnes on a race-based jury selection objection. During jury selection, Barrera said, prosecutors struck all but one of the potential black jurors without cause – in apparent violation of Jackson's constitutional right to a jury of his peers.
The situation comes as no surprise to local NAACP President Nelson Linder, who sees Bradley's treatment of the Taylor nine, in comparison to his treatment of Morrow and Wright, as just another example of Williamson County's deep-seated racial bias.
"It's a worst-case scenario, and unfortunately that's what [there] is," he said. The NAACP routinely receives complaints, he said, that in Williamson Co. criminal justice, blacks are treated more "harshly" than are whites. "We want Bradley to use discretion to eliminate the double standard," he said. In early 2002, after receiving more than 20 complaints of discrimination in less than a year, the NAACP initiated an investigation into the allegation of racially biased sentencing practices in the county.
"We want to see the facts," he told the daily. Bradley quickly countered the NAACP's assertion, telling the Statesman that of the 35 defendants the county sentenced to at least 20 years in prison in 2001, "almost half were white, one-fourth were African-American and one-fourth were Latino."
As far as they go, Bradley's cited statistics are accurate, and have remained consistent over time for county defendants sentenced to prison time. Since 2000, according to TDCJ statistics, Williamson Co. has sentenced 2,770 people to state jails or prisons. Of those, nearly 56% were white, nearly 26% were Hispanic and just over 18% were black. However, what Bradley failed to mention, and what the daily failed to report, is that according to 2000 census figures, Williamson County's population is more than 82% white, 17% Hispanic, and just over 5% black – numbers that belie Bradley's assertion of across-the-board fairness.
"Those are the correct figures that illustrate everything," said Ann del Llano, an attorney with the Austin ACLU, who describes Williamson Co. as a "white flight" county, concluding, "Let's be real."
Holding the Line
If the wheels of Williamson Co. justice continue to turn on their current course, the Taylor nine will soon be added to the TDCJ roster, while their white meth-cooking counterparts appear likely to avoid that fate. For his part, District Attorney Bradley declined to answer any questions about the process by which his office arrives at plea offers, or about which factors his office considers when contemplating plea deals. He told the Chronicle that discussing any pending cases, such as those of the Taylor nine, would be "unethical."
Yet he also declined to discuss any closed cases, such as those of Wright and Morrow, explaining that he found it difficult to "isolate" those cases from pending cases. He also declined to have what he termed a "global" discussion about the process of plea-bargaining, saying that he finds "open-ended" discussions "unproductive." Bradley declined to elaborate on his reasoning. "I don't think I want to discuss this any further," he said.
If the claims of critics are accurate, it wouldn't be the first time that black people in Taylor have found themselves on the heavy side of justice's scales. Since at least the early '90s, the Williamson Co. DA's office has taken more than a passing interest in "cleaning up" the city's minority communities – notably with the 1994 "Turn Around Taylor" efforts, presided over by Bradley's mentor and former boss Ken Anderson, now a district judge, who served as county DA before handing the reins to Bradley in 2001.
In that effort, reportedly aggrieved citizens were worried about the scourge of drugs in a historically black neighborhood known as "The Line" and banded together with county law enforcers to create the TAT. Using police sweeps and "nuisance" laws, the group sent a host of drug dealers to jail and boarded up or bulldozed a host of offending properties.
In the view of many familiar with the cases of the Taylor nine, the county is now engaged in a repeat performance. "It is clear that they targeted the black population," said one defense attorney. But "I don't know what has caused the prosecution to make such [a big deal out of these cases]."
If the Taylor nine are so well-connected, asks another attorney, "where is the investigation [and prosecution] of their supplier?" And why, they both want to know, hasn't TAT or Bradley's tough-on-dealers approach extended to the Taylor defendants' white counterparts? Hampton thinks he knows the answer to that one: "The thing is that there are no [TAT] people anywhere [in the county] that are concerned about white redneck drugs" – no matter how insidious their operations might be.
Cats and Mice
If Floyce Lee Jackson was in fact a "high-level" drug dealer, as Bradley claimed, he does a very good job of concealing his altitude, as do his fellow Taylor defendants. The neighborhoods they call home boast none of the trappings of wealth. At best, the communities, on run-down streets in Taylor's small black quarter, are depressed, many of the homes are in need of serious repair, their foundations are crumbling, and more than one house boasts clumsily boarded-up windows and doors.
In August, Jackson sat in the courtroom wearing a pair of scuffed white sneakers and a borrowed suit several sizes too large, while a team of two prosecutors told the eight-woman, four-man jury (11 of them white, even after the judge-ordered delay and repaneling) that Jackson was a "mid-level drug dealer" ripped from the streets of small-town Taylor by courageous narco officers. Moreover, prosecutors repeatedly declared to the jurors, Jackson was actually one of 15 dealers swept off Taylor's streets by the undercover police.
Although the public-menace status of the Taylor nine had apparently been downgraded from "high-" to "mid-level" dealers some time between December and August, Jackson's prosecutors were adding a new and more onerous burden to his defense by repeatedly telling the court that Jackson was busted along with at least a dozen other conspirators. (The precise number was apparently flexible; prosecutors switched seamlessly between estimates of 12 and 15 drug dealers.)
Despite the clear misrepresentation – neither Jackson nor any of the other Taylor defendants was indicted on conspiracy charges – Barrera failed to object to the state's assertions, leaving Jackson alone in the courtroom to face the alleged wrongdoings of 14 ghosts.
After two days of testimony, the jury found Jackson guilty and sentenced him to life in prison, which Judge Carnes ordered Jackson begin serving only after he finished serving the time remaining on his previous Potter Co. sentence.
In his closing arguments, Barrera asked the jury to consider what a conviction would actually accomplish. "If you want to convict Mr. Jackson for this crime, do you think [it's] going to stop one person in Taylor from getting their drugs?" he asked. "This is a demand-driven industry and these guys are playing cat-and-mouse games. They're not keeping any dope off the streets."
In recent weeks, federal drug warrior John Walters has turned his attention to the latest and apparently, in his esteemed opinion, greatest threat: Canadian marijuana. Walters, head of the White House Office of National Drug Control Policy (the "drug czar"), in recent months has bemoaned the increase in availability of the allegedly superpotent Canadian bud. Canada has less strict marijuana laws than the U.S., and our northern neighbors have allegedly been cultivating strains that contain about 7 percent THC, more than triple the amount commonly found in U.S. pot in the '70s.
This combination of lax laws and pot potency equals a national scourge for Walters, who told Time that he blames a potent strain of the dope cultivated in British Columbia – the nefarious "BC Bud" – for a rise in marijuana-related emergency room visits in the late 1990s.
"Canada is exporting to us the crack of marijuana," he said.
Unfortunately for Walters, the U.S. Department of Justice doesn't agree with his dire dope assessments. According to the annual National Drug Threat Assessment report, released in April by the National Drug Intelligence Center, California and Mexico produce most of the pot smoked in the U.S., and growers in Hawaii are credited as the "leading source of high-potency marijuana." Further, contrary to Walters' claims, the increase in marijuana-related emergency room visits has "not been significant."
Meanwhile, in Nevada ...
At press time, the fight over the latest Nevada marijuana-legalization ballot initiative was raging on, as supporters waited on the U.S. 9th Circuit Court of Appeals to give a final nod on its fate. On Sept. 2, Silver State election officials announced that initiative supporters had gathered about 2,000 fewer signatures than the number required to secure the measure a place on the November ballot.
However, that determination – made after a district judge sided with initiative organizers and ordered a signature recount – is potentially moot if the 9th Circuit rules in favor of the Marijuana Policy Project on an action pending before the court.
At issue is the Nevada secretary of state's decision to rule invalid the petition signatures of people who signed up in support of the measure on the same day they registered to vote. The Silver State's last citizen initiative to decriminalize marijuana was vociferously opposed by Walters, whose campaign activities there led to previous legal actions alleging the drug czar violated the federal Hatch Act, which restricts the political activities of government employees.
Under the fearless leadership of Attorney General John Ashcroft, the U.S. Department of Justice has taken to churning out prewritten op-ed pieces in support of mandatory minimum sentencing requirements and pitching them to local newspapers, over the signatures of local U.S. attorneys, reports the Drug Reform Coordination Network.
Ashcroft's full-throttle "AstroTurfing" (pseudo-grassroots) campaign comes in response to a growing discontent with the man-min sentencing structure, voiced by several federal judges, including Supreme Court Justice Anthony Kennedy – and, more recently, a June 24 Supreme Court decision (Blakley v. Washington), in which the court opined that juries, not judges, must decide the facts of a case if those facts may result in a longer sentence.
The DOJ's bolstering campaign was outed earlier this month by the advocacy group Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers, after the "model" op-ed turned up in three different newspapers. And last week DRCNet spotted the same piece – which warns that the high court's Blakley decision jeopardizes "the safety of America" – in three Tennessee newspapers, signed by two different U.S. attorneys.
Meanwhile, the Nevada Supreme Court has declined a motion filed by the Marijuana Policy Project, which asked the court to force federal drug czar John Walters to account for all taxpayer money he spent in 2002 stumping in the Silver State against a ballot initiative that sought to decriminalize possession of up to 3 oz. of marijuana.
The MPP argued that Walters' visits to the state were in clear violation of the 1939 Hatch Act, which regulates the political activities of government officials. Further, Walters refused to comply with Nevada's election expenditure reporting requirements and was chastised by the state's attorney general for his "disturbing" interference in the state vote.
Nonetheless, Walters was allowed to circumvent the law after the AG opined that Walters would likely prevail in court. On Aug. 18, the state's highest court confirmed that opinion in a one-paragraph order.
On August 26, Texas is scheduled to execute James Allridge III for the 1985 murder of 21-year-old Brian Clendennen, who died from two gunshots fired in the course of the botched robbery of a Fort Worth-area convenience store. At his trial, Tarrant Co. prosecutors argued that Allridge, then 21, killed Clendennen on Feb. 4, 1985, while on a "crime spree" with his 23-year-old brother, Ronald. (Ronald, implicated with James in a string of area robberies, had been sentenced to death in 1986 for the murder of Carla McMillian, killed during the robbery of a Whataburger a month after Clendennen's death. He was executed in 1995.)
In 1987, after finding James Allridge guilty of Clendennen's murder, his trial jurors were faced with choosing a punishment: life in prison with a possibility of parole (after 20 years), or a death sentence. Allridge had no prior criminal record, but the jurors were not instructed to consider his past, or his troubled relationship with his brother Ronald. Instead, their determination would be based solely on their answers to the two "special questions" asked of Texas' capital-case jurors prior to 1990. First, they were asked, was the crime deliberate? And, second, did they believe "beyond a reasonable doubt" that "there is a probability" that Allridge would commit additional "acts of violence" in the future, making him a "continuing threat" to society?
If the jurors had answered "no" to either question, Allridge would have received a life sentence; but following deliberation, the jurors answered "yes" to both, and James Allridge was sentenced to die. (In 1993, Allridge also pled guilty to four counts of aggravated robbery stemming from the 1985 crimes. He received a life sentence.)
After reading the verdict, District Judge Joe Drago III asked Allridge if there was anything he wanted to say. Allridge turned to face the Clendennen family and apologized for killing their son. "The only thing on my mind at the time wasn't what the jury had decided what they were going to do to me or what my future might hold, none of that," Allridge recently recalled. "It was that I wanted to say I was sorry to Brian's mom; that's what I wanted to do."
A Question of Clemency
Seventeen years later, James Allridge and his supporters – including four of the original jurors, his family, attorneys, two former death row prison guards, a retired prison system administrator, a Fort Worth city councilman, one of Allridge's former employers, and a handful of others – have joined forces to ask that the state Board of Pardons and Paroles and Gov. Rick Perry commute Allridge's death sentence to life behind bars.
Allridge's bid for a life sentence is not based on a claim of innocence or on a lack of due process. Instead, his plea for commutation is based on his apparent rehabilitation while in prison and his quest for redemption – two factors that Allridge's supporters, criminal-justice reformers, and policymakers say should play a key role in Texas' clemency decisions, especially since the state's capital statute emphasizes, as it did in Allridge's sentence to death row, the "future dangerousness" of the accused.
"[W]e ask that you consider whether the interests of the criminal justice system – including deterrence and rehabilitation – are best served by executing a rehabilitated person who, while carrying responsibility and remorse for his actions in his heart, is trying to give something back by furthering the safety and stability of the prison environment and struggling to redeem himself," attorneys Jim Marcus and Lisa Fine wrote in Allridge's petition to the BPP. "Our request for mercy is premised on the belief that the open-ended ability to commute a death sentence in Texas ... should be exercised in the extraordinary rare instance that a compelling record demonstrates true rehabilitation."
Allridge's supporters say that in the 17 years he has been in prison he has become a model inmate – that he accepts responsibility for Clendennen's murder and strives for redemption, in behavior that he models for other inmates. He is a calming force on the row, and former guards say he has made the unit a safer place. He has honed his writing skills, teaches other inmates to read and write, and has taught himself to paint and draw. Allridge's art – primarily brightly colored, highly professional renderings of flowers in full bloom against a deep black background – has been featured in art shows across the country and in Europe and have attracted considerable attention – both positive and negative. To his supporters, Allridge's art is a symbol of his rehabilitation – a tangible and graphic example of the man he has become. "It's quite natural that when people get out of a certain environment, they change," said Richard Deiter, executive director of the Washington, D.C.-based Death Penalty Information Center. "It is particularly important in Texas that a person show that [change], because the death penalty statute is focused on 'future dangerousness.' That is the key. When that [prediction] turns out to be wrong, it seems like good grounds for clemency."
Although the question of whether a defendant poses a continuing threat to society – both outside and inside prison – is integral to deciding a death sentence in Texas, rehabilitation has not played a correspondingly significant role in deciding clemency. Indeed, since the reinstatement of the death penalty, Texas has never once granted a commutation based on rehabilitation or in the interest of redemption.
To the opponents of Allridge's bid for mercy – including the Tarrant Co. District Attorney's Office and, reportedly, the Clendennen family – his personal transformation in prison carries little weight, and they consider his art, and the recognition it has earned him, an unending stream of salt in the wounds of their loss. "My ... son, Brian, was also an artist and a writer who got up and preached in church," Doris Clendennen told the Associated Press. "But he never got to fulfill his dreams."
Allridge and his supporters do not claim that his rehabilitation somehow erases the tragedy visited upon the Clendennen family. Rather, their argument is that in order to maintain the integrity of the state's death penalty system, and to ensure that the ultimate punishment is reserved for the most egregious crimes and irredeemable offenders, the system must also demonstrate moderation and mercy. In the case of James Allridge, supporters argue, the remorse is genuine, the rehabilitation exemplary – and a formal acknowledgement of his quest for true redemption will only serve to strengthen the system.
In short, with Allridge set for execution on Aug. 26, there is one question left to answer: Is there any mercy for the condemned? "If the death penalty is a deterrent," proposes Allridge's attorney Lisa Fine, "executing James Allridge will serve as a deterrent to striving for redemption."
A Merciless Excess
Whatever the current state of his character, the odds of Allridge receiving a commutation are extremely low. Since 1999, the Board of Pardons and Paroles has received over 120 requests for clemency in capital cases. It has denied all but three, each brought to them this year. Moreover, a nod from the board means nothing unless the governor chooses to accept the recommendation: Of the three clemency recommendations he's received, Perry has acted on only one. That one, for killer Robert Smith, was based on a claim of mental retardation and was essentially mandatory, given that the U.S. Supreme Court ruled in 2002 that executing the mentally retarded is unconstitutional.
In 2001, Perry had vetoed state legislation that would have barred the execution of the mentally retarded. And in May, Perry demonstrated a seemingly callous indifference to the idea of mercy by rejecting the board's 5-1 vote to grant clemency to paranoid schizophrenic Kelsey Patterson – earning worldwide attention and scorn.
The Supreme Court has also opined that some provision of clemency is necessary to render a capital statute constitutional, and the board has the power to grant clemency on any grounds. "That's the thing, it's an open-ended remedy," said Marcus, executive director of the Texas Defender Service. "There is no restriction on the power of the board. We don't have to show any particular circumstances. They can grant clemency or a commutation for any basis. Rehabilitation is a classic reason to commute a sentence." Despite that wide latitude, clemency in Texas has been more illusion than reality, raising eyebrows from the federal judiciary. In December 1998, U.S. District Judge Sam Sparks upheld the state's procedures but cautioned that the system is "extremely poor and certainly minimal." "The goal," he said, "is more to protect the secrecy and autonomy of the system rather than carrying out an efficient, legally sound system."
Indeed, in the modern era of the death penalty in Texas, rehabilitation has never formed the basis of a board commutation recommendation – even though inmates have occasionally sought mercy on those grounds.
Rehabilitation was a central basis of Karla Faye Tucker's 1998 bid for clemency. Tucker and co-defendant Daniel Ryan Garrett were convicted and sentenced to die for the gruesome 1983 pickaxe murders of Jerry Dean and Deborah Thornton. While in prison Tucker underwent a religious conversion that her supporters – among them Pope John Paul II, conservative preachers Pat Robertson and Jerry Falwell, and Thornton's brother Ronald Carlson – argued was the cornerstone of her successful rehabilitation. The board unanimously rejected Tucker's plea.
Even without a board recommendation, the governor is empowered to grant one 30-day reprieve; but Tucker's rehabilitation and redemption failed to sway the self-proclaimed born-again and reformed Gov. George W. Bush. "Many of Tucker's supporters are basing their request for clemency upon her gender and her religious conversion," Alberto Gonzales, Bush's general counsel, wrote in a memo to Bush the day before Tucker's execution. "Neither of these factors have been given weight in previous decisions made by you in death penalty cases."
Tucker had become a poster child for mercy, and her execution, which embittered supporters, reformers, and policymakers, transformed her into an international example of the absence of mercy in Texas' death system. "It ought to concern all of Texas. It should concern all of the United States. It should concern the world because there is no mercy in Texas," Tucker's attorney David Botsford told The Dallas Morning News. "Clemency is a farce."
By contrast, evidence of rehabilitation has resulted in clemency elsewhere. In 1997, Republican Virginia Gov. George Allen – whose state has the nation's second-most active death chamber – granted a sentence commutation to convicted murderer William Saunders, because Saunders had "established a model record on death row." Most recently, in January, the Georgia parole board granted a commutation to Willie James Hall, based in part on his record of "excellent behavior" while in prison, reported The Atlanta Journal-Constitution.
Similar demonstrations of behavior modification have not impressed Texas' decision-makers. "Texas is one of very few states that requires a finding of future dangerousness to impose the death penalty," said UT law professor Jordan Steiker. While it might appear that standard is, in theory, generous to defendants, Steiker adds that in practice it has transformed the punishment phase of a capital trial to allow the state to introduce every "bad thing you've ever done" as a predictor of future behavior. Those predictions are often wrong - but because of the "malleable" nature of the question, Steiker says, "You would think that it would give some political coverage to the executive branch" to grant clemency based on rehabilitation. "It is ironic because they haven't acknowledged redemption and rehabilitation," he said. "It would seem that the [board and governor] would take an interest in not executing when execution is not necessary. That is almost the textbook definition of excessiveness."
The Man From Murderabilia
Steiker's argument does not impress longtime Tarrant Co. District Attorney Tim Curry, whose office prosecuted Ronald Allridge in 1986 and James Allridge in 1987. In more than 30 years as DA, Curry has never "filed anything supporting clemency, and we won't be in this case," said Curry spokesman David Montague. "I don't think anyone's ever presented anything that we feel justifies it."
Andy Kahan, who has directed the Houston mayor's crime-victim's assistance office for 12 years, shares Montague's position. In contrast to Allridge's supporters, who consider his art a reflection of his focused rehabilitation, Kahan judges Allridge's artistic endeavors as nothing more than a means to capitalize on his death row status in order to make a buck. "He is absolutely nothing except that he has murdered somebody in cold blood," Kahan said.
For a decade Allridge's art has attracted free-world buyers. Allridge has a web site that features some of his work, certain of his drawings sell for over $300, and many are featured on inmate-designed greeting cards created by the advocacy group Citizens United for the Rehabilitation of Errants, which sell for $10 a box. According to Allridge's web site, profits from the sale of his art are used to pay his legal fees.
This does not matter to Kahan, who for five years has gained notoriety for his quest to keep condemned inmates from "profiting" from their crimes. Kahan was instrumental in the 2001 passage of Texas' so-called "murderabilia" law – a term Kahan says he coined and that, God willing, with a little help from his friends (whom he prods to use the term more often in casual conversation), he hopes will some day become a dictionary entry. The law is designed to prohibit convicted criminals from profiting from the sale of items marketed based on their inmate status, and it allows the state to confiscate any profits to use for victim compensation.
The law has never been tested. Kahan said he has been tracking Allridge's enterprise for years but only recently decided that his should serve as a test case. "I've always been of the opinion that it is nice to pass laws, but not if you can't or don't enforce them," he said. Kahan has filed a formal complaint with the Polk Co. DA's office (home to the Texas Department of Criminal Justice's Livingston Unit, which houses death row inmates), and with TDCJ, asking them to shut down Allridge's Web site. (TDCJ's Office of Inspector General is investigating Kahan's complaint, and the Polk DA has appointed a special prosecutor to look into the matter.) What prompted Kahan's current indignation? "Two words," he said. "Susan Sarandon."
Sarandon has been corresponding with Allridge for nearly eight years, and on July 14 made a trip to Livingston to visit him and say goodbye. Why has Kahan waited to act until now? "The public wasn't familiar with James Allridge; he was not a household name," Kahan said, until Sarandon came to town. Kahan had been "looking for a reason" to pursue a legal case against Allridge, which Sarandon gave him. "Because of her visit, that gave him publicity that he didn't have before," he said. "That has bumped him up to a celebrity status ... and that is why I requested an investigation." In sum, Kahan insists, the only reason anyone is interested in Allridge's art is because of his "status on death row." "The [Clendennen] family is obviously outraged that he is using his death row status," he said. "From the [viewpoint] of the victims' families, let me tell you, there is nothing more nauseating."
Kahan is not persuaded by the claim that Allridge's art is part of his effort at rehabilitation – or by the idea that Allridge could use his art to compensate the Clendennens if his sentence were commuted. "More power to James Allridge for turning his life around," Kahan said. "[But] you're not put on death row to rehabilitate."
Other victim advocates reject Kahan's position and consider rehabilitation and mercy extremely important. "They should be rehabilitated - it's all the hope we have," says Linda White, spokeswoman for the Texas branch of the advocacy group Murder Victims' Families for Reconciliation. White's daughter was raped and murdered in 1986 by two 15-year-old boys. Although certified to stand trial as adults, and therefore eligible for a death sentence, the two pled guilty to the crime and are currently serving 54- and 55-year prison sentences. At the time, White said, people would make comments to her about how "it was a shame we couldn't fry them." But White never agreed, she says, and she does not believe that a jury's prediction of "future dangerousness" should forever nullify a chance for mercy. "If you see that a person has made significant gains, what sense does it make to continue the process without commutations or clemency?" She points to Tucker's case as an example. "[T]here was no good reason to execute that woman, no good reason," she said. "And she could've been put into the general [prison] population and could've been a wonderful help to other people, helped to turn other people around."
MVFR member Jeanette Popp agrees. Her daughter was the victim of Austin's notorious 1986 Pizza Hut murder, for which two innocent men, Christopher Ochoa and Richard Danziger, served more than a decade in prison before being exonerated. The two were freed after the actual killer, Achim Josef Marino, confessed to the crime; Popp implored Travis Co. prosecutors not to seek the death penalty for Marino.
"There is no such thing in Texas as rehabilitation, or clemency due to rehabilitation. They have no idea how to temper justice with mercy," she said. But Allridge, like Tucker before him, is a remarkable example of an inmate who has rehabilitated himself "in spite of the system," she said. "The case of Karla Faye Tucker breaks my heart every time I think about it. And James Allridge is probably going to be another waste – another horrible waste."
Popp agrees that convicted killers should not be allowed to profit from their crimes but doesn't see any sense in trying to extract compensation from a death row inmate. "Think about it – if we gave [Allridge] clemency he could continue his artwork and compensate his victim's family," she said. "Let him do what he can to make up for what he did. Execution is an easy way out, and no one gets anything out of it. The family isn't going to have their rage reduced. ... It isn't going to go with [Allridge], that is for sure."
The Quality of Mercy
Time is running out for James Allridge. His supporters know that, realistically, there is only a slim chance that he'll be granted a commutation – but that has not erased their hope, or Allridge's. "I do have hope despite my situation," Allridge said in an interview posted on his web site. "I think that you should never take away someone's hope because it destroys the soul and can create a monster that no one is going to want to deal with. I think that everyone, no matter what they have done, should be given the opportunity to become rehabilitated."
Interestingly, it appears that Charles Aycock, a member of the six-member Board of Pardons and Paroles, might share that opinion. In May, Aycock, a longtime county attorney in the Panhandle and former president of the State Bar Association, was the only board member to vote in favor of granting a commutation to David Ray Harris – whose false testimony in the late Seventies landed Randall Dale Adams on death row for the murder of a Dallas police officer. (Errol Morris told Adams' story in his 1988 documentary The Thin Blue Line; Adams was released from prison in 1989.)
In June, Harris was facing execution for a different murder, committed in 1985 during a bungled burglary attempt. In his commutation petition, Harris recounted his difficult childhood and the events leading up to the murder. As reported by Rick Casey in the Houston Chronicle, Harris recounted his religious conversion and explained that while in jail he'd earned an associate's degree in theology from Calvary Bible Institute. Harris was asking the board for a commutation based on rehabilitation.
Aycock declined to comment on his vote in favor of Harris' bid, but Casey reported that Harris' petition included a quote from Aycock that had appeared in a previous Chronicle story. "I respectfully submit that clemency decisions are not about whether the person facing death has had his case reviewed by one court or ten courts," Harris wrote. "Clemency is not about a rigid legal standard – or even a legal standard capable of articulation. Rather, it is about mercy."
Despite the disappointing failure of last November's various drug-reform ballot measures, reformers have upped the ante and now have medical-marijuana, decriminalization, or industrial-hemp legislation pending in 13 states. In an e-mail addressed to supporters of the National Organization for the Reform of Marijuana Laws, NORML director and founder Keith Stroup says the current legislative season has been the biggest for drug reformers since the 1970s.
Currently, decriminalization bills are pending in Connecticut, Oklahoma, and California -- where the penalty for possession of up to one ounce would be reduced from a misdemeanor to an "infraction," akin to a traffic ticket. Legislators in Massachusetts, Connecticut, Vermont, Montana, Maryland, Arkansas, Wyoming, and New York are all considering medical-marijuana bills. In Maine, a proposal that would legalize the cultivation of industrial-grade hemp is making its way through the legislative process. So far this year NORML has only noted one legislative failure; on March 7, the New Mexico Legislature defeated a medical-marijuana bill by a floor vote of 46 to 20.
In Texas, Rep. Harold Dutton, D-Houston, has filed the state's lone drug reform bill of the session, HB 715, which would decriminalize possession of up to one ounce of pot. The bill would make such possession a Class C misdemeanor (punishable by up to a $500 fine) and would forbid the state from suspending the license of anyone convicted of the charge. Howard Wooldridge, a former Michigan cop turned lobbyist for Texas NORML, said he is optimistic about the bill's passage. Currently, Texas NORML is courting the favor of House Criminal Jurisprudence Committee Chairman Terry Keel, R-Austin, a lawyer and former Travis Co. sheriff.
Wooldridge says that so far, his work at the legislature has been aimed at education. While cops are out harassing drivers, looking for small amounts of marijuana, he said, "drunk drivers are speeding by and killing people." So far, he said, the legislators he has talked to have been receptive to this train of thought. And if they fear that some constituent will label them as "soft on crime," he points them to a recent Time magazine poll that shows 70% of the population supports decriminalization for up to an ounce of pot. "I am trying to give these people some backbone to do the right thing," he said. "Win, lose, or draw, this will be worth it."
19 out of 24 Victories for Drug Policy Reform