• December 19, 2014

Judges restricted in sentencing some first-time offenders

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Posted: Friday, June 6, 2008 12:00 pm | Updated: 4:48 pm, Tue Feb 11, 2014.

By Justin Cox

Killeen Daily Herald

In criminal sentencing, why do judges give someone probation time rather than sending them to jail?

Sometimes they have little or no choice, especially if the defendant is a first-time offender. Under Texas state law, for first-time drug offenders found guilty of the lowest drug possession offense, possession of less than 1 gram cocaine, for instance, probation is mandatory.

That means that it doesn't matter if the prosecutor, defense attorney, arresting officer, or even sitting judge believes the defendant deserves jail time; under state law, he or she gets probation only.

Bell County District Attorney Henry Garza said he doesn't believe many people realize that fact.

"When that law was passed, it was passed as a 'one size fits all,'" Garza said. "In reality, that's just not true. What it does is prevent the courts from being able to make individual determination based on each case. I think the judges ought to have the discretion in individual cases to make the determination."

Garza said he is firmly against the law because it puts two vastly different groups of felony offenders in the same punishment category.

"I generally think the public is unaware mandatory probation sentences must be given out by the courts," he said. "The Legislature was under tremendous pressure to reduce the population in the penitentiary. Many of those were drug offenders. They were hoping to rehabilitate to save against having to construct new facilities in the future."

Garza said he believes that about 60 percent of offenders who get probation end up committing another crime shortly thereafter and are back in the system, only to get the jail sentence the next time around that they should have already received.

"There are success stories out there," Garza said. "For the individual who really wants to redirect their life, we'll never see that individual again, and they'll live out their lives. But more so, we'll see individuals who have been on probation who are back up here (after committing another felony)."

Prosecutors aren't the only ones who believe that the mandatory probation isn't a viable solution. Defense attorney Paul LePak has tried many cases through the Bell County Justice Complex, and said sometimes, probation just isn't the way to go, not even for his client.

"I'm certainly a proponent of probation in the right circumstance," LePak said. "If you've got nothing more than high school hijinks, then probation is an acceptable punishment. But there are lots of these kids where it's automatic probation, and that's just not appropriate, even if it is their first felony offense. They've professed the fact that they are not gonna quit using drugs, or they're not going to quit dealing drugs, or they are not mentally capable of following the rules of probation for an extended period of time."

But one way or another, it all comes back to the judge.

Judge Martha Trudo serves as one of the three criminal court justices from her elected post as the 264th District Court judge. Trudo said that even with offenses such as burglaries, probation is the necessary step and a chance to give some kids the wake-up call they need.

"For some who are not getting 'pen' time the first time around, have no prior record ... they are 17- or 18-years old – perhaps they cooperated or maybe had given information – maybe there's not a problem with giving a young person a second chance," Trudo said. "When they see the same person picked up time and time again, I don't know that it happens that often. I don't think you find that very often, unless there is a really good reason. It's a case-by-case basis."

Sometimes, she said, the prosecutors will already have a deal worked out which is amenable for the defense that gives probation a second time around. She said she reviews it and asks the attorneys about the specifics, and reviews the evidence to make sure it's appropriate given the circumstances.

"Sometimes the state will come up with some squirrely offer like that," Trudo said. "It's one thing to give someone the opportunity to straighten up ... sometimes the state plea bargains to get the jail time with a felony conviction."

Contact Justin Cox at jcox@kdhnews.com or (254) 501-7568.

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